COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 21.3.2000COM(2000) 142 final

2000/0065 (COD)2000/0066 (COD)2000/0067 (COD)

COMMUNICATION FROM THE COMMISSIONTO THE EUROPEAN PARLIAMENT AND THE COUNCIL

ON THE SAFETY OF THE SEABORNE OIL TRADE

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Council Directive 95/21/EC concerning the enforcement, in respect ofshipping using Community ports and sailing in the waters under the jurisdiction of the

Member States, of international standards for ship safety, pollution prevention andshipboard living and working conditions (port State control)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Council Directive 94/57/EC on common rules and standards for shipinspection and survey organisations

and for the relevant activities of maritime administrations

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the accelerated phasing-in of double hull or equivalent design requirementsfor single hull oil tankers

(presented by the Commission)

2

COMMUNICATION FROM THE COMMISSIONTO THE EUROPEAN PARLIAMENT AND THE COUNCIL

ON THE SAFETY OF THE SEABORNE OIL TRADE

TABLE OF CONTENTS

INTRODUCTION

I. BACKGROUND

A : SEABORNE OIL TRADE

1 Importance of oil transport

2. Oil tanker fleets

3. Tanker casualties

B : TANKER SAFETY

1. Developments in tanker safety

2. Weaknesses in the present system

II. PROPOSALS FOR ACTION

A : PROPOSALS FOR IMMEDIATE LEGISLATIVE MEASURES

1. Port State control

2. Classification societies

3. Single and double hull oil tankers

B : PROPOSALS FOR FUTURE MEASURES

1. Increased transparency

2. Surveillance of navigation

3. Enlargement of the European Union

4. Towards a European structure for Maritime Safety

5. Liability of the maritime players

C : VOLUNTARY AGREEMENT WITH INDUSTRY

CONCLUSION

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ANNEXES

I-A Tanker accidents

I-B Double hull or equivalent design tankers

LEGISLATIVE PROPOSALS

I. Proposal for a Directive of the European Parliament and of the Councilamending Directive 95/21/EC on port State control of shipping

II. Proposal for a Directive of the European Parliament and of the Councilamending Directive 94/57/EC on classification societies

III. Proposal for a Regulation of the European Parliament and of the Council on theaccelerated phasing-in of double hull or equivalent design requirements for single hulloil tankers

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INTRODUCTION

1. On 12 December 1999 the 25-year old, Maltese-registered, single hull oil tankerErika chartered by Total-Fina broke in two some 40 nautical miles off the southerntip of Brittany. More than 10 000 tonnes of the 30 000 tonnes of heavy fuel oil it wascarrying were spilt. About 400 kilometres of coastline were polluted by the oil,causing serious damage to fauna, flora, fisheries and tourism, as well as potentialpublic health consequences.

This was not the first accident of its kind in European Union waters. The wreck ofthe oil tankers Torrey Canyon, Olympic Bravery, Boehlen, Amoco Cadiz, Tanio,Aegean Sea and Braer in particular come to mind.

Some 70% of the European Union's oil imports are transported along the Brittanycoast and through the English Channel, hence the fact that the same regions are hitagain and again. If such an accident were to occur in the Mediterranean, the effectswould be equally disastrous.

As the scale of reaction to the sinking of the Erika shows, public opinion is no longerprepared to tolerate such accidents. There have been calls for rigorous action atCommunity level, not least from the European Parliament1 and the Council ofMinisters.2

2. It has become clear that the normal framework for international action on maritimesafety under the auspices of the International Maritime Organisation (IMO) fallsshort of what is needed to tackle the causes of such disasters effectively. The IMOsuffers from a major handicap: the lack of proper means to verify how its regulationsare applied throughout the world. As a result, IMO regulations are not appliedeverywhere with the same rigour. The evolution of maritime transport over the lastfew decades and in particular the emergence of "flags of convenience", some ofwhich fail to live up to their obligations under the international conventions, istending to aggravate this phenomenon.

It was for this reason that the European Council called on the Commission, followingthe 1978 Amoco Cadiz disaster, to come forward with proposals to control andreduce pollution caused by oil spills. An ambitious programme of proposals waspresented which resulted, in the end, simply in a number of formal declarations orresolutions, encouraging Member States to ratify the IMO and ILO Conventions.One directive establishing minimum requirements for certain tankers was, however,adopted.

Once the "momentum" generated by a tanker accident subsided, Member Statestended to avoid binding measures at Community level, more particularly sinceunanimity was required for decision-taking.

1 European Parliament resolutions of 20 January 2000 and 2 March 2000.2 Council meeting on General Affairs, 24 January 2000.

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3. It was not until the middle of the 1990s and the advent of qualified majority votingthat the Council adopted the first building blocks of a common maritime safetypolicy including:

– organisation at Community level of stricter application of internationalconventions,

– adoption of specific Community provisions where IMO standards are lackingor inadequate.

The Erika disaster demonstrates, firstly, the risk presented by old ships and,secondly, the need to tighten up the existing Community regulatory framework -which, incidentally, Member States are not applying properly, particularly as regards

the number of inspections in ports - beyond the level of the IMO standards. This wasalso the tendency in the USA, where the regulatory framework was tightened up atfederal level following the Exxon Valdez catastrophe.

The Commission therefore proposes a number of measures that could be takenimmediately, and longer-term, more complex measures which will be the subject of asecond series of proposals towards the end of the year.

4. With regard to the short-term regulatory measures, the Commission is presentingthree sets of measures to the Parliament and the Council of Ministers with thiscommunication:

• Firstly, more rigorous inspection of ships using Community ports, which shouldbe reflected in tougher measures against ships that are manifestly sub-standard.Itis proposed to ban from all ports of the Union ships older than fifteen yearsthat have been detained more than twice in the course of the two precedingyears, on the basis of a "black list" which the Commission will publish everysix months. In addition, inspections of all ships will have to be stepped up in linewith the age of the vessel and will systematically have to target one of the ballasttanks. Ships will be required to communicate certain information before enteringports to enable inspections to be properly prepared. Member States will have toundertake to inspect vessels more frequently and more thoroughly, notably byincreased recruitment and training of inspectors, in order to avoid the creation of"ports of convenience".

• Secondly, there must bestricter monitoring of the classification societiestowhich Member States delegate power to inspect the quality of ships. TheCommission reserves the right to suspend or withdraw the societies' recognitionby means of a simplified procedure, and the societies must be held fully liable inthe event of negligence.Good safety and pollution prevention performanceofthe classification societies will become essential in order to obtain and maintainrecognition at Community level. In addition,more stringent quality criteriamust be met by the recognised organisations, including the obligation to followcertainprocedures when a ship changes class, such as the transmission of thecomplete history file of the ship to the new classification society.

• Finally, it is proposed to generalisethe ban on single hull oil tankersaccordingto a timetable similar to that applied by the USA (2005, 2010 and 2015,depending on tonnage).

6

The three proposals form a coherent whole and the first two apply not only to oiltankers, but to any ships transporting dangerous or pollutant substances. In particular,the information gathered in the course of inspections in each port and of surveys bythe classification societies will be widely publicised, notably through the EQUASISdatabase, so that the condition of a vessel will systematically be known andindividual liability will be clearly established in the event of an accident.

5. In a second stage, the Commission plans to make additional proposals in thefollowing areas:

• Systematic exchanges of information between all the actors in the maritimecommunity by further developing the EQUASIS system in particular. It isimportant in this context to ascertain which professions (shipowners, insurers,classification societies) are willing or otherwise to ensure maximum transparency.

• Improved surveillance of navigation, particularly in those areas where oiltanker traffic is most dense.In addition to the obligation to "report", as alreadyprovided for in a Commission proposal of December 1993 not yet adopted by theCouncil, the arrangements for monitoring the most hazardous ships outsideterritorial waters must be examined. These are issues on which Member Stateshave always been reserved, on grounds of potential conflicts with the internationallaw of the sea.

• The possible establishment of a European structure for maritime safety,whose prime task would be to monitor the organisation and effectiveness ofnational inspections in order to ensure greater uniformity.

• Development of the liability of the various players in the seaborne oil trade.The liability regime is currently governed by international conventions. TheCommission intends, firstly, to seek to increase compensation available undercollective compensation schemes of the IOPCF type and, secondly, to establishthe principle of responsibility of the carrier and owner of the cargo.

6. Enhanced safety of maritime transport cannot be decreed. It will be achieved bydeveloping often highly technical rules and reconciling the Union's obligations toprotect its environment with its industrial interests - the capacity to renew its fleet -and international considerations. The European Union, the world's leading tradingpower, cannot discount the consequences of unilateral measures that might conflictwith its activities in the rest of the world, given that most of the European fleet tradesexclusively between non-Community ports.

Before proposing new Community legislation in the social field in particular(training of seafarers, etc.), the Commission wishes to draw attention in thiscommunication to the fact that several of the existing measures have still not beencorrectly implemented. Some of the texts already adopted have either not beentransposed or are not being properly applied, with the result that infringementproceedings are in progress in several cases.

Furthermore, while deploring the widespread recourse to flags of convenience, theCommission would also point out that most of the vessels controlled by Europeancompanies have been flagged out to third countries for tax reasons. Having said that,the Commission considers that it should be a condition of the accession negotiations

7

with Cyprus and Malta that these countries apply the existing Community legislationon maritime safety as soon as possible but not later than by by the date of their toaccession.

7. In order to act as speedily as possibly and to avoid further disasters like the Erika, theCommission proposes that the oil companies, without awaiting the adoption of thefirst package of directives, should undertake byvoluntary agreement to refrain infuture from chartering tankers older than 15 years (unless appropriate inspectionsshow them to be in a satisfactory condition) and to take any other measuresnecessary to improve safety. The discussions on this voluntary agreement should alsobe reflected in improvements to the reform of the oil companies' liabilityarrangements.

8. The package of measures proposed is designed to improve prevention of accidents ofthe Erika type and in this way to enhance protection of the marine and coastalenvironment. The Commission would point out that measures to combat pollutionare planned in the common position adopted by the Council on 16 December 1999concerning the European Parliament and Council Decision setting up a Communityframework for cooperation in the field of accidental or intentional marine pollution(2000-2006).

9. In addition to the measures proposed in this communication, the Commissionconsiders that the proliferation of operational pollution by all types of ships and therisk of serious pollution by bunker oil in the event of accidents are also cause forconcern. It therefore plans to examine preventive Community initiatives that couldbe taken in this respect.

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I: BACKGROUND

A: SEABORNE OIL TRADE

1. Importance of oil transport

(a) World oil movements

More oil than any other commodity is shipped globally. In 1998 the total crude oil and refinedproducts transported by sea amounted to more than 2 000 million tonnes3 which in weightterms represented 40% of the total cargoes shipped by sea.

World Oil Trade

The principal sea routes for crude oil are from the main natural oil sources: Middle East/Gulfto Southeast Asia, Japan/South Korea, Europe and the USA; from North Africa to Europe andfrom the Caribbean to the USA.

The EU oil trade is the largest in the world, with crude oil imports representing about 27% ofthe total world trade while US imports amount to 25% of the world total. The oil trade isbroadly divided into crude oil and refined products. In tonnage terms, crude oil amounts toaround three quarters of the global trade (1 590 million tonnes), with products representingabout one quarter (430 million tonnes).

90% of the total oil trade with the European Union (intra- and extra-EU) is seaborne. Theremainder is shipped by pipeline, land transport and by inland waterways.

In the coming years a continuing increase in tanker trade can be expected due to an increase inthe demand for petroleum products following the expected growth of economic markets.

(b) EU oil movements

The EU seaborne oil trade is particularly important. Oil demand in the EU is around640 million tonnes, but approximately 800 million tonnes p.a. is transported to, from andbetween Community ports. This does not include domestic trade within individual States.

3 EUROSTAT and OECD/IEA statistics, Journal de la Marine Marchande.

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Approximately 70% of tanker trade in the EU is concentrated off its Atlantic and northerncoasts and the remaining 30% in the Mediterranean. Within these two zones, the split betweencrude oil and product trades is approximately 2/3 to 1/3.

There is also an additional volume of tanker traffic passing through EU waters but not callingat European ports, for example in the Mediterranean from the Middle East passing throughthe Strait of Gibraltar.

(c) EU seaborne trade patterns – crude oil

EU imports of crude oil are mainly from the Middle East and North Africa, while exportsfrom the North Sea oil fields are mostly to North America.

Trade patterns are essentially governed by port and refinery locations, as the refineries receiveall incoming crude oil and deliver the oil products. The largest EU oil ports are Rotterdam(which handles 100.8 million tonnes of crude oil p.a.), Marseilles (48.3 m tonnes), Le Havre(37.0 m tonnes), Trieste (35.7 m tonnes) and Wilhelmshaven (32.6 m tonnes).

The larger tankers dominate the crude oil trade. Oil to Europe from the Middle East isnormally carried on Very Large Crude Carriers4 (VLCC) with a tonnage of +200 000 tonnesdeadweight (tdwt)5 routed around Africa, or through the Suez Canal using “Suezmax” tankersof between 120-140 000 tdwt.

(d) EU seaborne trade patterns – oil products

The product trade is more complex, comprising EU imports and exports, intra-EU anddomestic trades. The total product trade is about 205 million tonnes p.a.

Imports and exports to/from the EU total 135 million tonnes while trade within the EUamounts to 70 million tonnes. The oil product trade in the North Sea region is particularlyintense. The type of tankers used are usually of a smaller size range (5-50 000 tdwt handysizeproduct tankers.)

The number of product tankers operating within EU waters at any given time is difficult toquantify because it varies to such a large extent. However, a rough estimate is about 1 500 to2 000 vessels, the majority being of a smaller size. This sector plays an essential role in thedistribution of oil products in the EU.

The product tanker trade is further divided into so-called “black products” (bitumen, heavyfuel oil, etc.) and “white products” (kerosene, petrol, etc.). Many white products are of ahighly flammable nature and are carried in modern, state-of-the-art tankers. Black oils pose afar smaller risk of fire and explosion and are regularly carried in older tankers nearing the endof their economic lives.

4 Or Ultra Large Crude Carrier (ULCC) of +300 000 tdwt.5 Deadweight is the tonnes of cargo, fuel and stores carried on a ship.

10

Although it is true that black oils are intrinsically less hazardous, they can be much morepolluting when spilled into the sea than white products or even crude oil, which to a largeextent may disperse by evaporation.6

Erika was a 35 000 tonne product tanker engaged in the carriage of heavy fuel oil (blackproduct cargo).

2. Oil Tanker fleets

The world fleet

Having established the importance of the oil trades both at a global level and within theCommunity, it is necessary to look more closely at the actual tanker fleet.7

The world tanker fleet can be roughly divided into oil tankers (crude and products), chemicaltankers and liquid gas tankers. In tonnage terms the oil tanker fleet is by far the greatest.Indeed, this sector is the largest of all shipping sectors and includes the world’s largest ships.

The world oil tanker fleet on 1 January 1999 comprised 7 030 ships8 totalling 289 milliontdwt. This represented 38.5% of world merchant tonnage.

The average age of the world tanker fleet in 1999 was 18 years (compared to 16.7 years in1995). Of the total 1999 fleet, 41% (2 939 ships) were built before 1979, i.e. are now over20 years old. In tonnage terms these represent 36% of the total tanker tonnage.

The world's 15 largest oil tanker fleets, representing 85% of the total tonnage, are shown inthe following graph.

6 Accidental spills can result from ships other than tankers which often carry large quantities of heavyfuel as bunkers. This aspect is not addressed in this Communication; however it is an important riskwhich has already been flagged up within the IMO.

WORLD OIL TANKER FLEET - 15 LARGEST FLEETS BY FLAG(ISL 1999)

010 000

20 00030 000

40 000

50 00060 000

Liberia

Greece

Malta

Singapore

Mars

hall Is

Cypru

sIn

dia

Bermuda

1000

dwt

11

The European fleet

The EU registered oil tanker fleet of 855 tankers9 totalling 43.2 million tonnes dwt represents14.9% of the world total. However it is estimated that companies established within the EUcontrol10 about 35% of the world’s oil tanker fleet. Flags frequently used by EU interestsinclude Liberia, Panama, Cyprus, Malta and Bahamas.

The average age of the EU registered oil tanker fleet was 19.1 years in 1999 (18.9 in 1995),which is above the world average. More than 45% of the EU registered fleet is over 20 yearsold (in terms of numbers of vessels.)

Many EU flagged and controlled tankers are engaged in “cross-trades”, meaning that theytrade between countries other than those in which they are registered, for example betweenthe Middle East and Japan, and may seldom or never visit EU ports.

It should also be noted that the world’s sixth largest tanker fleet is registered in Norway(18 million tonnes), which means that the EEA-flagged tanker fleet represents over 20% ofthe world total.

3. Tanker casualties

Between January 1992 and March 1999 a total of 593 merchant ships were lost (about8 million tdwt). 77 of these losses were tankers which, although accounting for only 13% ofthe total number, represent 31% in terms of tonnage.

When compared to the share of tankers in the world fleet (18.2% in terms of numbers of shipsand 38.5% in tonnage), it would appear that they have a relatively good safety record.Annex 1 contains a summary of major tanker casualties in EU waters. Although the majorityof the accidents mentioned occurred off northern and western EU coasts, it must be stressed

7 Sources of data: Institute of Shipping Economics and Logistics (ISL) Bremen, Yearbook and variousissues of FOCUS 1999, ISL Merchant Fleet Data Base (aggregates based on quarterly updates fromLMIS); Institute of Shipping Analysis (ISA), Gothenburg; DG TREN Statistics Pocket Book.

8 Ships of 300 gt and over.9 Denmark includes: DOR, DIS, Faeroes and Greenland. France includes: Kerguelen, New Caledonia,

French Polynesia, Martinique, Guadaloupe, St. Pierre et Miquelon, Mayotte, Reunion, Wallis andFortuna Is, French Guyana. Netherlands includes Netherlands Antilles and Aruba. Portugal includesMadeira (and Macao). Spain includes Canary Is. UK includes Isle of Man, Channel Is., Br.Virgin Is.,Montserrat, St.Helena, Turks & Caicos Is., Anguilla and Falkland Is.

10 Control: the country of domicile of the company owning the controlling interest in the fleet.

0

5 0 0 0

1 0 0 0 0

1 5 0 0 0

2 0 0 0 0

2 5 0 0 0

3 0 0 0 0

GR

UK F I

DK E P S

FIN NL

LUX

DE B

IRL A

(NO

R)

I S L 1 9 9 9

E U - F L A G G E D O I L T A N K E R F L E E T ( P L U S N O R W A Y )( 1 0 0 0 t d w t )

12

that tanker accidents in the Mediterranean have the potential to pose an exceptional risk to theenvironment and commerce. Accidents are often attributed to human error (e.g. faultynavigation or pilotage). Other causes are structural failure, fire and explosion.

There is a general correlation between age and accidents to ships. The following table showsthe percentage of all ships lost between 1989 and 1998 according to age group:

Moreover, figures in Annex 1 show that 60 out of the 77 tanker casualties between 1992 and1999 were over 20 years of age. However, several of the tankers involved in major pollutionincidents in Europe resulting from grounding were comparatively young.11

Structural failure is the other major cause of major pollution accidents over which there isincreasing concern.

There have been several instances of serious structural failure, the worst being theBetelgeuseexplosion caused by the hull fracturing in Bantry Bay, Ireland, in 1979 which killed 50people. TheNakhodka suffered a similar fate toErika off Japan in 1997 when she broke intwo while carrying heavy fuel oil, causing extensive pollution.

11 Although this Communication addresses tanker casualties and the resulting pollution, it should be notedthat the greatest source of tanker pollution is operational, such as cleaning of tanks and disposing ofcargo residues. A number of measures have been taken by the IMO which have resulted in a reductionof this type of pollution, and the provision of adequate reception facilities in all tanker ports will resultin further reductions. The proposed Directive on port reception facilities for ship-generated waste andcargo residues addresses this problem in Europe – Common position (EC) No 2/2000.

SHIPS LOST 1989-1998 AS %OF TOTAL(Source: Institute of London Underwriters)

0.00

0.10

0.20

0.30

0.40

0.50

0.60

0-4 5-9 10-14 15-19 20-24 >25

AGE GROUPS (years)

%T

OT

AL

LOS

SE

S

0

13

In these accidents, serious corrosion in ballast tanks was seen as a contributing factor. In thesame month as theErika disaster the Russian tankerVolgoneft 248, also carrying heavy fueloil, ran aground in bad weather and broke up off Istanbul causing major pollution.

The measures taken to improve safety and lessen pollution as a result of these accidents hasresulted in a significant decrease in both accidents and oil pollution. However, there is noroom for complacency. Since theTorrey Canyon disaster the reaction of European citizenshas sharply swung from being one of grudging acceptance that pollution is a price we have topay for economic development, to one of intolerance and outrage. It has to be emphasised thatno other type of marine disaster has ever resulted in damaging such huge areas of the marineenvironment and impacting on the lives and businesses of such a large number of people.Consequently, while welcoming the improving trend in tanker safety, there is clearlymore that can and must be done to try and eliminate accidents of this nature.

B – TANKER SAFETY

1. Developments in tanker safety

Following a number of very serious oil spills caused by tanker accidents, various strictmeasures were taken at international level to improve safety standards. The impact of thesemeasures is reflected in recent casualty statistics.

(a) IMO legislation

Following theTorrey Canyon disaster in 1967 the real environmental threat posed by therapid growth in tanker traffic and ship size became apparent. It was clear that furthermeasures were needed to prevent oil pollution from tankers and also to improve the systemfor compensation following such accidents.

The plan of action drawn up at IMO followingTorrey Canyon resulted in a series ofconventions covering the legal and operational problems exposed by the accident. As well asaddressing accidental pollution, the important issue of operational pollution was also covered.

0

0.5

1

1.5

2

2.5

3

3.5

4

4.5

5

70 72 74 76 78 80 82 84 86 88 90 92 94 96 98

Year

Mill

ion

bbl

GROUNDING

COLLISION

TOTAL

(Source INTERTANKO)

(Note: "Total" graph showsall oil spills including thosecaused by structural failure,fire and explosion.)

ANNUAL QUANTITY OF OIL LOST WORLD-WIDE AS ARESULT OF ACCIDENTAL SPILLS

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The International Convention for the Prevention of Pollution from Ships (MARPOL)12 wasadopted in 1973. The Convention aims to cover all vessel-sourced pollution, not only oil, butalso chemicals, sewage, garbage and other harmful substances. The latest annex to be adoptedcovers air pollution from ships.

Among the measures adopted under MARPOL was Crude Oil Washing, which eliminated theneed for washing cargo tanks with sea water. Inert gas systems were introduced on crude oilcarriers to prevent ignition within cargo spaces. Another measure was the introduction ofSegregated Ballast Tanks (SBTs). The measures were incorporated in the 1978 Protocol to the1974 Convention for the Safety of Life at Sea (1978 SOLAS Protocol) and the 1978 Protocolto the 1973 MARPOL Convention.

More recently, following theExxon Valdezaccident in 1989, further requirements have beenintroduced in MARPOL to phase out single hull tankers and replace them by those withdouble hulls or equivalent design. (For further details see Part II, A.3)

(b) Measures taken within the EU

A number of measures have also been taken at Community level in the fields of safety andpollution as well as the inspection of ships. These to a great extent build on or complementinternational IMO legislation. The Directive on port State control13 covers the inspection ofall ships and includes specific requirements relating to the inspection of tankers. Directive94/57/EC establishes common rules and standards for ship inspection and classificationsocieties and for the relevant activities of Administrations.14

The IMO Resolution relating to tonnage measurement of segregated ballast tanks (SBTs) isimplemented in a Regulation15 which provides for ships with SBTs to receive a reduction inport dues.

Vessels carrying dangerous or polluting goods to and from EU ports are required to reportdetails of their cargoes under Directive 93/75/EEC.16

The proposed Directive on port reception facilities for ship generated waste and cargoresidues17 aims to ensure compliance with the provision under MARPOL that ports have toprovide reception facilities.

(c) Operational measures

A number of important measures have been taken within the IMO framework which help toreduce the chance of vessels grounding or colliding whilst on passage. Traffic SeparationSchemes (TSSs) have been adopted in areas of heavy traffic. These schemes provide one-waytraffic lanes greatly reducing the chance of ships meeting head-on (e.g. Dover Strait). Theyalso ensure that traffic is kept well away from the coast (e.g. Ushant). The introduction ofTSSs has greatly reduced the incidence of collisions in areas where they have beenestablished.

12 The IMO International Convention for the Prevention of Pollution from Ships, 1973 as amended by the1978 Protocol (MARPOL 73/78).

13 Council Directive 95/21/EC of 19 June 1995.14 Council Directive 94/57/EC of 22 November 1994.15 Council Regulation (EC) No 2978/94 of 21 November 1994.16 Council Directive 93/75/EEC of 13 September 1993.17 Common position (EC) No 2/2000.

15

Navigational equipment has become more reliable and accurate. Radars now have the abilityautomatically to plot other ships and the navigator can assess the collision threat far moreeasily. Precision navigation using satellite technology (GNSS) provides a continuous accurateplot of the ship’s position. This greatly reduces the chance of grounding whilst on passage.

Further improvements in the technical field are being introduced. Accuracy of navigation willbe further improved for example through the introduction of Electronic Chart and InformationSystems (ECDIS) and the development of the GALILEO global navigation system. Thefitting of transponders on ships (AIS) will enable ships to be identified from the shore andwill also provide navigators with improved information to determine risk of collision withmore precision. The accuracy of meteorological forecasting has improved and weather-routing of ships can result in reduced damage and economic savings.

(d) Training and the human element

In many accidents the “human element” has been a substantial contributory factor. Trainingand competence of crews was recognised as being an essential part of improving safety at seaand the adoption of the 1978 IMO Convention on Standards of Training, Certification andWatchkeeping for Seafarers (STCW 78) was adopted. Its limitations though were soonrecognised and a rigorous overhaul of the Convention resulted in the revised STCWConvention which came into force in 1997.

Development of technical training aids such as simulators has helped to improve theeffectiveness of training schemes for seafarers.

A series of ILO regulations concerning the working and living conditions on board ships hasalso been adopted. The most recent, covering the regulation of working hours on board,addresses the issue of fatigue, which is seen as an increasingly important contributory factorin marine accidents. The Commission will continue to follow with great interest theproceedings of the International Labour Office with a view to enable the expeditiousconclusion of the negotiations on the abandoning, the dead and the harm to seafarers.

Another important instrument, the International Safety Management Code (ISM), becamemandatory from 1998. The ISM Code provides for safe practices in ship operations, a safeworking environment and requires safeguards against identified risks. It also provides forcontinuous improvement in management skills of personnel, especially in safety and responseto emergencies.

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(e) Structural improvements

Close monitoring of ships’ structures and the stresses on hulls has led to reductions of lossesdue to structural failure. Improved stress monitoring equipment and accurate loadingcomputers have helped ensure that stresses are kept within allowable limits. As a furthercheck on the condition of ageing tankers, MARPOL requires (from 1993) an EnhancedSurvey Programme (ESP) of inspections to be carried out for crude oil tankers above 20 000tonnes and product carriers over 30 000 tonnes. This requires a much more rigorousinspection of a tanker’s hull than was previously the case. IMO Guidelines specify the detailof such surveys, which become more stringent as the ship’s age increases. The scope was laterexpanded so that from 1996 onwards, the ESP provisions have applied to all tankers over500 tonnes. ESP has had a significant effect in reducing losses and incidents causingpollution. This is clearly shown in the following graph

Oil spills – Annual quantities of oil lost as a result of structural failures, fires andexplosions

(f) New tanker designs18

Tankers constructed since 1996 are required under MARPOL to be built with double hulls orequivalent designs and single-hulled tankers will be phased out. Double-hulled ships willgreatly reduce the chances of pollution in cases of low-impact collisions or grounding in

18 The Key Action within the Fifth Framework Programme on “Land transport and marine technologies"will target improvements in efficiency, safety and environmental aspects of ships.

0

500

1 000

1 500

2 000

2 500

3 000

1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999

year

1000

bbl ESP

NakhodkaErika

(Source INTERTANKO)

17

particular. The maintenance of structural integrity, especially in the ballast spaces of theseships, will be essential. The use of modern effective coatings and corrosion protectionsystems in ballast spaces will help prevent the rapid deterioration which was evident in oldertanker designs. It will be essential to monitor the integrity of the coating and systems closelyas these new designs of ship age.

Tanker fleet on 1.1.2000 –proportion of Double-Hull vessels(source INTERTANKO )

Size segment (tdwt.) No. of tankers Double Hull % Double Hull

< 5 000 2249 32 1.4%

5 – 20 000 1155 296 25.6%

20 – 80 000 1538 424 27.5%

80 – 200 000 975 417 42.8%

> 200 000 493 164 33.3%

TOTAL 6410 1333 20.8%

2. Weaknesses in the present system

(a) Ownership and chartering practices

All the technical improvements achieved cannot hide the fact that there are certain trends inthe market which give serious grounds for concern. Oil companies have largely disposed oftheir tanker fleets. Many small independent tanker owners have entered the market. Oilcompanies now control only a quarter of the world fleet while independent tanker ownerscontrol three quarters.

In addition there is a trend towards “atomisation” amongst independent tanker owners. Bysplitting their fleet into single-ship companies, often in the form of “brass-plate” companiesregistered in offshore locations, owners can reduce their financial risk. It is often difficult todetermine who are the financial interests concealed by these structures and who are the truedecision makers responsible for the safe operation of the ships.

Charterers also show a somewhat similar trend. The major oil production companies are incompetition with oil trading companies, which can be subdivided into globally operating bigplayers and niche operators. New oil-trading companies regularly emerge, while othersdisappear or merge. The oil trading and charter market is highly competitive. Finding thecheapest tanker capacity available on the market is an essential part of the business. Thevolatile character of the market is also reflected in a shift away from long-term contractsbetween charterers and carriers towards short-term charters (the so-called “spot market”), as isillustrated in the following table.

1974 1999

Fleet controlled by oil companies 40% 25%

Long-term charter between oilcompany and carrier

50% 25%

Short-term charter/spot market 10% 50%

(Source: INTERTANKO)

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Price competition on the spot market is fierce. Market observations show that there is nosignificant difference between freight rates for young and old tankers, with prices apparentlyoften dictated by the cheapest, oldest tonnage available. In such a market it is thereforedifficult to make quality pay, resulting in small, low-cost operators gaining market share atthe expense of companies with long-standing reputations. This entails a risk for safety.

(b) Rule enforcement

The economic reality described above calls for strengthened inspection regimes to ensure thatsafety will not be compromised and used as a means to compete unfairly with operatorsapplying high quality standards.

Primary responsibility for ensuring ships comply with international standards lies with theflag State (with which the ship is registered.) Regrettably, not all flag States are seen to carryout this task to a sufficient level of responsibility. Although flag States are bound by theregulations contained in the international conventions to which they are parties, the IMO doesnot possess the policing powers to ensure that they abide by them. This enables lessscrupulous operators to register their ships under flags which they know will not require fullcompliance with international rules. It is for this reason that port States have established a lineof defence against sub-standard shipping through inspections carried out under port Statecontrol regimes (PSC). Under PSC, a proportion of the ships calling at a State’s ports areinspected to ensure compliance with international safety, pollution and manning standards.PSC does not specifically focus on structural matters. As PSC is carried out during port calls,normally involving loading or discharging operations, the ability to inspect cargo and ballastspaces is limited, and inspection of the underwater hull structure is practically impossible.

Ship's structures are inspected and monitored by classification societies. These are highlyspecialised private organisations with extensive experience in the shipping sector, employinghundreds and in some cases thousands of technical staff and supported by powerful researchand computer centres. The classification societies assess the condition of a ship againsttechnical standards set by each society in order to issue the certificate of class. In addition,they are often authorised to act on behalf of flag States to verify the ship’s compliance withsafety and environmental requirements laid down in the international conventions and issuethe relevant statutory certificates.

In recent years, the increasingly commercial character of classification societies has led tostrong competition by societies in attracting clients. At the same time there has been aworrying trend towards a proliferation of societies of varying standards and an increasingtendency for owners to switch class (“class-hopping”).

To ensure the structural integrity of the tanker fleet, it is absolutely essential that classificationsocieties apply the highest possible standards in carrying out their tasks. Although the tenmembers of the International Association of Classification Societies (IACS) aim to setappropriate standards and ensure that they are maintained, there are still serious doubts as towhether enough is being done throughout the entire class system to achieve the necessarylevels of quality. Many in the industry consider that not all IACS members meet the requisitehigh standards. There seem to be variations both between performance of individual IACSmembers and also within classification societies, where differing standards are reporteddepending upon the flag administration and/or the client.

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The Commission shares the concerns often expressed in various sectors of the maritimeindustry that the performance of classification societies does not always meet the standardsrequired.

(c) Industry response

The Community recognises that action is already being taken by industry to address theproblems highlighted by theErika accident. In particular, IACS has perceived the urgentneed to improve the detection and monitoring of the structures of ageing ships, particularlyregarding degradation of steelwork in ballast tanks.

IACS, at a special meeting of its board in Hamburg on 16 February, examined the specificquestion of oil tanker safety in depth and announced a number of measures. These include animprovement in class surveys for tankers over 15 years old. Class records, including thicknessmeasurement reports, will be maintained in computerised format and transferred to the societytaking over a ship’s classification. Specific measures include annual checks on ballast tanksadjacent to heated cargo tanks and an enhanced intermediate survey regime. Transparencywill improve through increased sharing of information. The proper implementation of themeasures adopted by the IACS members will be closely monitored by the Commission andthe Member States in the framework of the inspections of the classification societiesrecognised on the basis of Council Directive 94/57/EC.

The oil industry has also reacted to the accident. Working in the framework of the OilCompanies International Marine Forum (OCIMF) the industry is discussing how theeffectiveness of the private inspection schemes used by members of OCIMF can be enhanced.Most major oil companies have their own in-house inspection schemes. The commercialdepartment will only charter tankers which have been inspected by their technical department.The inspection procedures and reports are harmonised to a certain extent and the datamaintained in a common OCIMF database (SIRE), which covers some 4 000 tankers andannually produces some 10 000 tanker inspection reports. As a first step, OCIMF has agreedthat the private inspection reports stored in the SIRE database will be made available to PSCinspectors in the framework of the EQUASIS project (see II-B-1), which should help tooptimise available PSC resources more efficiently.

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The need for action…

Erika was a 25 year old product tanker with segregated ballast tanks carrying heavy fuel oil.Her statutory certification was in order and she had successfully completed a five year surveythe year before the accident. An enhanced port State control inspection had been carried out inMay and no deficiencies were found. She had undergone the charterer’s inspection and hadbeen found suitable for her trade. How, therefore, is it possible that the ship could havebroken in two and caused such an environmental catastrophe?

Erika therefore poses a serious challenge to all concerned in the tanker industry. It clearlyshows that action is necessary to look beyond the mere verification of certification and theconducting of superficial inspections if we are to prevent a repetition of such tanker accidents.Responsibility for ensuring that tankers meet the required safety and environmental standardslies with the owner and flag State. It is clear, though, that some States and owners are lessconscientious than others. There is, moreover, a marked lack of transparency in this complexindustry, often resulting in the identity of those persons responsible for an individual tankerbeing obscured behind the doors of “brass plate” companies in offshore locations. Because ofthis, there is a clear need for port States and responsible industry bodies to take a strongerline, particularly with respect to older tankers, to ensure that structural defects and sub-standard tonnage are identified well before they pose a threat to the environment. The fact thatthe average age of the world and EU tanker fleet is relatively high and still increasing is alsoof great concern. This trend has to be reversed by the introduction of newer, moreenvironmentally friendly, tonnage.

What is needed all-in-all is a package of measures which will bring about a change inculture in the tanker industry. There should be stronger incentives for quality-mindedcarriers, charterers, classification societies and other key bodies. At the same time, thenet should be tightened around those who seek short-term personal economic gain at theexpense of safety and the marine environment.

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2 : PROPOSALS FOR ACTION

In drafting its proposals, the Commission adopted an approach designed in particular to:

– make inspection procedures and practices more uniform;

– increase "cross-fertilisation" between Community instruments, in particular thedirectives on port State control and classification societies;

– increase the sanctions for ships potentially posing a major environment hazard,while rewarding operators of ships of a more environment-friendly quality ordesign;

– endeavour to eliminate the confusion created by the proliferation of differentcontrols and inspections: each party (shipowner, charterer, flag State,classification society and port State control authority) should respect the limitsof its own role and powers;

– engage the liability of all the actors in the industry involved in the operation ofsub-standard ships;

– combat the lack of transparency in maritime transport by introducing stricterobligations to publish information relating to inspections and ship detentionsand by developing the EQUASIS database on the quality of ships;

– improve the monitoring of correct application of Community legislation byproviding the Commission with the necessary resources to accomplish thistask.

The Commission proposes two types of measure:

• As a first step, the Commission is presenting regulatory measures. Threeproposals for legal acts are annexed to this communication. They concern theamendment of the Port State Control Directive (Directive 95/21/EC), theamendment of the Classification Societies Directive (Directive 94/57/EC) and aRegulation on the accelerated phasing-in of double hull or equivalent designstandards (Part A).

• The second part of the communication sets out the broad lines of future actionconcerning the transparency of information on the quality of ships, thesurveillance of navigation, the possibility of setting up a European structure formaritime safety and above all action to ensure the liability of the various playersin the shipping community (Part B).

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A - PROPOSALS FOR IMMEDIATE LEGISLATIVE MEASURES

1. Port State control

Port State control of ships developed as a reaction to the lax or negligent behaviour of someship operators or flag States that showed little concern for compliance with the IMO safetyregulations. It is based on the principle of verification of compliance with these internationalregulations by inspecting ships calling at ports.

In Europe19 an administrative agreement, the Paris Memorandum of Understanding (MOU),was concluded in 1982 in order to establish harmonised inspection procedures. In 1995, theCouncil adopted Directive 95/21/EC which makes the MOU mandatory and significantlystrengthens its provisions. This Directive constitutes the main pillar of Community action inits battle against ships that fall short of international safety standards. In parallel with thelegislative initiative, training for inspectors is important in order to achieve harmonisedimplementation of inspection practices in ports. The Commission has financed thedevelopment of an advanced training course and plans on this basis to organise courses in2000 and 2001 for inspectors from the various national maritime administrations of the MOUmember countries.

The Port State Control Directive has been amended on several occasions to increase theuniformity and efficiency of procedures. However, the Erika accident revealed certainshortcomings in the way port State control works, particularly as regards the inspection ofships that statistically present greater risks, by virtue either of their age or the pollutant natureof their cargo. It is also clear in the Commission's view that the current lack of transparency ofthe shipping community and the lack of synergy between the actors (port inspectors,classification societies, etc.) considerably reduce the efficiency of port State control.

The Commission therefore attaches to this Communication a first legislative proposal toamend Directive 95/21/EC on the basis of the following principles:

a) Tougher measures against manifestly sub-standard ships

• Banning of ships over 15 years old that have been detained more than twice in thepreceding two years and figure on the "black list" of flags with an above-averagenumber of detentions. This measure has the character of a sanction against"recidivist" shipowners and Flag States that have given proof of persistentlyneglecting the follow-up of ships flying their flag. The Commission will publishthe list of banned ships every six months.

• Systematic inspection in ports of ships whose "target factor" is particularly high.20

19 The region covered by the Paris MOU actually extends far beyond the borders of the European Union,as it includes countries such as Canada, Russia and Croatia.

20 The "target factor" works on the following principle: a certain number of points is allocated to ships onthe basis of various criteria, such as age, flag, previous detentions, etc. Ships with the highest number ofpoints must be inspected as a priority. This tool permits the targeting of vessels posing a high risk andthe harmonisation of procedures for selection of the ships to be inspected, thereby reducing the risk ofdivergent practices depending on the port.

23

b) Increased inspection of oil tankers and other vessels posing a risk

• The optional provisions in the existing Directive concerning potentially hazardousships21 will become mandatory: these ships will henceforth be subject tomandatory expanded inspection every year on entering a Community port. Anadvance notification obligation prior to entry into ports has been introduced tofacilitate the preparation of inspections.

• The measures for oil tankers are even tougher: they will be subject to theexpanded inspection regime from the age of 15 onwards, rather than 20 and 25 asin the current Directive. In addition, inspectors will have to examine at least oneof the ballast tanks in order to detect any corrosion problems.

c) Increased information obligations

• Greater efficiency: inspectors will have more information on the ships to beinspected via mandatory consultation of the EQUASIS database on ship quality.In addition, inspectors will be required to state in their reports the nature of theinspections carried out: this will help to avoid the same inspection being repeatedby the inspector in the next port of call.

• "Cross-fertilisation": the flag State and the classification society will be informedof the results of inspections, enabling them to intervene more rapidly in the caseof a deterioration in the condition of a ship.

• Greater transparency: additional items have been added to the list of informationto be published on inspections and detention, in particular the name of thecharterer.

d) Improved monitoring of the application of the Directive

Member States will be required to provide detailed information to the Commission toenable it to evaluate better the effectiveness of the Directive and to verify MemberStates' compliance with its provisions. This will make it easier to detect cases wherethe Directive is incorrectly applied and to institute infringement proceedings on thebasis of Article 226 of the EC Treaty.

2. Classification societies

Classification societies22 are key players in the maritime safety field. It would be difficult toimagine a shipping world without the technical expertise provided by these organisations.However, largely due to the commercial pressure exercised on the classification societies, andto the growing number of organisations operating in the field without having sufficientexpertise and professionalism, the confidence of the shipping community in theseorganisations has declined in the recent decades.

21 Ships presenting a risk, according to an Annex to the Directive, are oil tankers, gas and chemicaltankers and bulk carriers above a certain age, and passenger ships.

22 See I-B, Paragraph 2 (b).

24

A first response to these problems was provided at Community level by the adoption, in 1994,of Council Directive 94/57/EC, which introduced a system for Community-wide recognitionof classification societies. This Directive addressed the overall issue of the quality of theclassification societies to be authorised to work on behalf of the maritime administrations ofthe Member States. The qualitative criteria of the Annex to the Directive aimed to ensure thatonly highly reliable and professionally competent bodies be authorised to work on behalf ofthe EU Member States. The overall provisions of this legal instrument were designed toensure that the relevant safety requirements were applied in a harmonised and scrupulousmanner on board ships. Furthermore, the Directive introduced obligations to controlclassification societies working on behalf of the Member States, both to ensure that therecognised organisations continued to meet the provisions of the Directive and to assess theirquality performance.

This Directive represented one of the first steps on the road to the establishment of aCommunity policy on maritime safety. Its transposition into the national laws of the MemberStates constituted a long and complicated process, with twelve infringement procedureslaunched by the Commission for failure to comply with the transposition time-limit laid downin the Directive and with the last Member State transposing the Directive only in 1998. TheCommission also launched a number of infringement procedures – some of which are stillpending – for non-compliance, mainly related to the establishment of the workingrelationships between the maritime administrations and the organisations authorised to workon their behalf.

The Directive suffered, on a number of issues, from some shortcomings that appearedfollowing its implementation. The procedure for the recognition of the classification societies,for example, was completely left to individual Member States withoutex anteharmonised andcentralised control of the fulfilment of the criteria of the Directive by the organisation wishingto be recognised. The same lack of harmonised and centralised approach applied to theperiodicex postcontrols of the recognised organisations. The safety and pollution preventionperformance record of the organisations – measured in respect of all their classed ships,irrespective of the flag they fly – was not regarded as aconditio sine qua nonto recognise theclassification societies or to maintain their recognition.

The lessons learned from the practical implementation of the Directive have led to theidentification of a number of areas where the provisions of the Directive can be furtherstrengthened. Hence the proposed amendments, which are described in detail in the secondlegislative proposal attached to this Communication.

The main content of the proposed amendments is the following:

• The granting and the withdrawal of the recognition of the classification societies aredecided by the Commission on the basis of the Comitology procedure. The periodicinspections of the recognised organisations are carried out by the Commission togetherwith the Member State proposing the recognition.

• A new sanction for the recognised organisation is introduced: the suspension of recognitionfor one year, which leads to the withdrawal of the recognition if the shortcomings causingthe suspension are not removed.

• A good record of safety and pollution prevention performance of the recognisedorganisations – measured in respect of all the ships they have in class, irrespective of theflag they fly – becomes aconditio sine qua nonto grant and maintain the recognition.

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• The conditions of the financial liability of the recognised organisation carrying outstatutory tasks on behalf of the Member States are harmonised at Community level. Thefinancial liability is unlimited or can be limited to different levels in accordance with theseriousness of the negligent act of the classification society.

• More stringent qualitative criteria have to be met by the recognised organisations,including the need to respect certain procedures when ships change class and the need tocommunicate more information about the ships they have in class to the port State controlauthorities. In order to ensure in particular that the gaining organisation has a full picture ofthe condition of a ship when it changes class, the complete file on the history of the vesselmust be transferred by the losing society to the gaining society.

• The obligations of the Member States as flag States are reinforced in the field of maritimesafety.

3 Single and double hull oil tankers

a) Current situation and problem

Most of the oil tankers currently in service are of the "single hull" design. In suchships, the oil is separated from seawater only by the bottom and side plating. If thehull is damaged following a collision or grounding, there is a risk that the cargo tankswill discharge their contents into the sea and cause major pollution. An effectivemeans of avoiding this risk is to surround the cargo tanks with a second inner plate ata sufficient distance from the outer shell. Such a "double hull" design protects thecargo tanks from damage and thus reduces the pollution risk.

Following the 1989 Exxon Valdez accident the USA, dissatisfied with theineffectiveness of the international standards on the prevention of pollution fromships, in 1990 adopted the Oil Pollution Act (OPA 90).

Under this law, they unilaterally imposed double hull requirements for both new andexisting oil tankers in the form of age limits (between 23 and 30 years from 2005)and deadlines (2010 and 2015) for the phasing-out of single hull tankers.

The IMO, faced with this unilateral measure by the USA, was forced to follow suitand in 1992 established double-hull standards in the International Convention on thePrevention of Pollution from Ships (MARPOL). This Convention requires all oiltankers delivered after July 1996 to have a double hull. Hence no single hull oiltankers have been built since that date.

Single hull oil tankers from 20 000 deadweight tonnes, delivered before 6 July 1996,are required by the Convention to comply with the double hull requirements from theage of 25 or 30, depending on whether or not they have segregated ballast tanks.23

23 The objective of segregated ballast tanks is to reduce the risks of operational pollution by ensuring thatballast water never comes into contact with oil. In addition, they are sited in a protective location tominimise the impact of grounding or collision.

26

Consequently, three categories of single hull oil tankers must be distinguished:

• Category 1: Single hull oil tankerswithout protective ballast tanks around thecargo tanks. This category will finally be phased out between 2007 and 2012 withthe implementation of the double hull requirements.

• Category 2: Single hull oil tankers in which thecargo tank area is partlyprotected by segregated ballast tanks. Phasing out of this category through theimplementation of the double hull requirements will only be completed in 2026(instead of 2010 and 2015 as in OPA 90).

• Category 3: Single hull oil tankers below the"MARPOL" size limits that are notaffected by the double hull requirements.

Given that it is practically impossible to convert a single hull oil tanker to a doublehull construction and as the age limits specified are close to the end of a ship'scommercial life, both the American system and the MARPOL Convention lead to thephasing out of single hull oil tankers.

However, because of the differences between the American and the internationalsystem, single hull tankers banned from American waters because of their age willbegin, from 2005 onwards, to operate in other regions of the world, including theEuropean Union, and lead to an increased risk of pollution in those areas.

b) Proposed Community response

The situation described is of concern to the Commission, since the statistics showincreasing accident rates for older ships. An appropriate Community response isnecessary and must take effect before 2005, a key date from which single hulltankers banned from American waters will begin to operate in European waters.

The Commission therefore proposes speeding up in the Community the replacementof single hull tankers by oil tankers complying with double hull or equivalent safetystandards.

This system must be aligned to the age limits and end-dates provided for in OPA 90,in order to prevent oil tankers banned from US waters from shifting their trades toEurope. The proposal will also reverse the ageing trend in the tanker fleet: new,double hull tonnage will replace the old single hull ships, thus ensuring betterprotection overall against the risk of accidental pollution.

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The attached Commission proposal for a regulation provides for the followingtimetable for the gradual phasing out of single hull oil tankers:

USA(OPA 90)

International(MARPOL)

EU(PROPOSAL)

Category 1:Single hull oil tankers, MARPOL size,without tanks in protective locations

2010 2007/2012 2005

Category 2:Single hull oil tankers; MARPOL size,withpartial protection of the cargo tank area

2010/2015 2026 2010

Category 3:Single hull oil tankersbelow the MARPOLsize limit

2015 Nodeadline

2015

The proposal for a regulation concerns all single hull oil tankers of 600 tonnesdeadweight and above flying the flag of a Member State, and is a condition of entryinto Member States' ports, regardless of the flag the ship is flying.

Finally, to encourage the use of double hull tankers, the Commission is proposing asystem of financial incentives in the form of a reduction in port and pilotage dues.Conversely, the use of single hull oil tankers will be discouraged by the increase inthese dues in line with ship age.

The Commission is aware of the economic and social impact this proposal will haveon the industry, and intends to examine it more in depth. Nevertheless, it is importantto give an impetus to the ongoing phasing-out of single hull tankers, by proposing toapply in the European Community a phasing-out calendar similar with the Americanone and by strongly supporting any endeavours aimed at achieving this acceleratedcalendar at international level as well (IMO).

The Commission is conscious of the fact that the accelerated phasing-out of singlehull tankers by new double hull tonnage will have some impact on the price of oilproducts. An assessment study on the Oil Pollution Act published by the USANational Research Council in 1998, concluded that the impact of OPA90 on the costof the oil products was estimated to be approximately 10 US cents per barrel or aboutone tenth of the cost of transportation, which in itself only represents between 5 to10% of the total product cost. The final impact on the price of the oil products willthus be less than 1%. Compared to the costs for cleaning up the consequences of amajor oil spill arising from accidents such as that of the ERIKA, which order ofmagnitude is estimated to be around 200 million EURO, the Commission esteemsthat this additional cost does not outweigh the benefits if with the measures proposedthe re-occurrence of such accidents in Community waters can be prevented. Itconsiders therefore that this is a reasonable price to be paid to ensure an effectivereduction in the risks of pollution.

The Commission further wants that the signal given to the Industry be clear andquick, to avoid uncertainty and unnecessarily delayed decisions to invest in newdouble hull tonnage. It is recognised between the major shipbuilding associations

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that for the foreseeable future there is sufficient excess building capacity to cope withthe increased demand for new double hull tankers that will emerge from thisproposal.

B: PROPOSALS FOR FUTURE MEASURES

Apart from the immediate legislative follow-up measures presented above, a number of otheractions will be proposed by the Commission within the foreseeable future. These proposalswill cover a variety of matters, including improvements to the existing regime ofcompensating damage caused by oil spills, measures to achieve increased transparency ofsafety-related information in shipping, the setting-up of a European structure for maritimesafety and improved coastal control of sea traffic in European waters. An outline of theenvisaged measures is given below.

1. Increased transparency

The lack of availability of information on matters of relevance to ship safety is a seriousconcern for the Commission. While a great amount of information on ships is being collectedby various bodies, it is scattered in many different places and often difficult to access, evenfor the maritime industry at large. The Commission considers that all sectors of the maritimeindustry have a responsibility to exercise care in the safety and quality of ships with whichthey are dealing. Furthermore, information on the basic details of ships, their safetymanagement and operation, inspections performed, etc. should not be reserved only for thosemost directly involved. The current lack of transparency in shipping is therefore unacceptableand does not serve the interests of either the industry itself or the wider public.

In order to remedy the transparency problem in shipping, the Commission, in co-operationwith the maritime administration of France, has initiated the creation of a new ship safetydatabase, EQUASIS, which will collect information relating to the safety and qualityperformance of ships and their operators and make it easily accessible on the Internet(www.EQUASIS.org). EQUASIS will be an important tool for anybody with an interest in orresponsibility for maritime safety, most notably for charterers determined to select ships ofhigh quality and for port State control inspectors. A first version of the EQUASIS databasewill become operational in May 2000, but the development and enlargement of the systemwill no doubt continue after that.

In its first stage, EQUASIS will contain details of the type, flag, age and ownership on allmerchant ships of the world. Inspection information from the port State control regions ofEurope, Asia-Pacific and the USA will also be available. In addition, it will contain somebasic data on the classification and insurance of the ships. Negotiations are underway towiden this data with further information from industry inspection schemes, flag States andmore detailed classification data. All data in EQUASIS will be factual in nature and thedatabase will not make any judgement or ranking of ships. Its purpose is to allow each user toform its own opinion on the quality and safety of the ship, based on the information provided.

The Commission and France have been involved in the development of this database since1998. More recently, the maritime administrations of Japan, Spain, Singapore, the UnitedKingdom, the United States Coast Guard and the International Maritime Organisation have

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indicated their preparedness to participate in the supervision of the system. The dailymanagement of EQUASIS will be carried out by a Management Unit to be created by theFrench Maritime Administration.

A number of important industry bodies, including shipowners, charterers, insurers andclassification societies, have already agreed to provide information to the system and toparticipate in the EQUASIS Editorial Board, which is the advisory body for informationproviders improving the information provided through EQUASIS. The first orientationmeeting of the Editorial Board was held in Brussels on 15 February 2000.

The Commission will make continuous efforts to improve the EQUASIS database. EQUASISwill within the foreseeable future become a comprehensive database, where all sectors of themaritime industry, whether public or private, easily can access a wide range of detailedsafety-related information on the world’s entire merchant fleet. The quality and extent ofinformation will be such that no charterer, insurer, financier, etc. of a sub-standard ship willbe able to claim not to have known about its poor condition. In order to achieve this aim,particular efforts need to be placed on increasing the contribution to EQUASIS by flag andport State control authorities as well as by classification societies.

2. Surveillance of navigation

Following the Erika accident, proposals were made for improving the surveillance ofpotentially dangerous ships navigating off Europe's coastline. It was stressed in particular thatthe inspections carried out in the framework of port State control of ships are not always anadequate solution, as particularly dangerous ships may sail along the coast of one or moreMember States before the problem is detected in port.

Radical measures have also been proposed, such as inspecting ships outside territorial waters,or even restricting or prohibiting navigation by certain particularly dangerous ships inMember States' exclusive economic zone. However, imposing restrictions or bans on shippingoutside territorial waters anda fortiori outside the exclusive economic zone, poses problemsnot only of compatibility with international law of the EC but also of the practical feasibilityof monitoring compliance with these measures.

By contrast, the Commission considers it the perfectly legitimate right of a State, particularlyone that is a frequent victim of shipping accidents, to be better informed of and monitor moreclosely the passage off its coastline of ships transporting pollutant substances, or presenting amajor hazard in any other respect.24 It is also essential to have advance knowledge of thecargo in the event of an accident involving a ship transporting pollutant substances, in order tobe able to intervene effectively against a risk of pollution or a pollution incident.

There is already a Community legal framework obliging ships transporting pollutant anddangerous substances to report to the competent authorities of the Member States: Directive93/75/EEC. However, this measure concerns only ships bound for or leaving Community

24 For example, where it can be concluded from the information received, e.g. inspections carried out inports in other regions of the world, that a ship presents a major hazard to safety and the marineenvironment before it even enters the port of a Member State. Another example would be a shipauthorised to sail to a repair yard after having been detained, where the authority concerned wishes tomonitor its behaviour.

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ports. A proposal for a directive, known as Eurorep,25 was adopted in December 1993 with aview to extending the reporting obligations of Directive 93/75/EEC to ships in transit off theCommunity coast. Despite having been welcomed by the European Parliament, the Councilfailed to reach agreement on this proposal.

The Commission intends to produce new proposals on the safety of maritime transport assoon as possible. The following factors will be taken into account in this context:

a) The international legal context has evolved considerably since 1993. In March 1998the European Community ratified the United Nations Convention on the Law of the Sea. Inaddition, a new Regulation was introduced in the SOLAS Convention (Regulation V/8-1)giving coastal States the possibility of establishing mandatory reporting systems applicable toall ships, including ships in transit.

b) The IMO has approved several mandatory reporting systems along the Europeancoastline, e.g. in the Strait of Gibraltar, off Cape Finisterre, Ushant and in the Strait of Dover.There is therefore in practice a "potential" chain of coastal reporting systems extending fromthe Strait of Gibraltar up to the entrance to the North Sea. These systems also ensure thesurveillance of ships navigating in their particular area.

c) There have been several significant developments in the field of communicationtechnologies:

– The most important is undoubtedly the advent of automatic ship identificationsystems or transponders. The IMO has approved the specifications and drawnup a provisional timetable providing for the mandatory installation of suchsystems on board all ships above 300 tons with effect from 2002.

– Another notable development is the growing use of telematics networks fordata transmission. It is worth pointing out in this connection that theCommission has initiated a memorandum of understanding between severalMember States concerning the introduction of an electronic data exchangenetwork (EDI) between Member States' administrations for the implementationof Directive 93/75/EEC (at present five Member States plus Norway are partyto this agreement and others may join shortly).

d) Construction of the global navigation and positioning infrastructureis now aEuropean Union priority through the GALILEO project. This initiative will lead to a reliableand highly accurate service (3 metres on the high seas and 1 metre in port areas), whichshould serve as a reference for positioning systems applicable to ships in or near Communitywaters. Together with ECDIS26, GALILEO offers a unique level of service in contributing toimproved conditions of navigability and safety. The system, based on a satellite array, willalso permit the relay of distress signals as provided for by the GMDSS concept.27 TheCommission also plans to use satellite images to detect polluting ships. The shipping

25 (COM(93) 647 final)26 ECDIS or Electronic Chart Display and Information System, which gives a continuous plot of the ship

in its nautical environment, including its immediate position, on an on-board computer.27 GMDSS or Global Maritime Distress and Safety System consists of a radio communication system

designed primarily for rapid alert of the shore-based search and rescue authorities and any ships in thevicinity in the event of an emergency.

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community is closely involved in the design of the GALILEO services and will thus be ableto identify other possible applications for the system.

All of these elements will lead the Commission to propose a general overhaul of the reportingsystem as described in Directive 93/75/EEC and in the proposed Eurorep Directive.28 Thenew proposal should help render more efficient and simplify the monitoring of ships inCommunity waters, in conditions compatible with the international law of the sea.

3. The enlargement process

The Luxembourg European Council decided in December 1997 to start negotiations with sixcandidate countries for accession to the European Union: Cyprus, Hungary, Poland, Estonia,Czech Republic and Slovenia. The Helsinki European Council increased in December 1999this number by deciding to start negotiations with Romania, Slovakia, Lithuania, Bulgaria andMalta. In addition the Helsinki European Council recognised the application of Turkey.

From the point of view of maritime safety, the accession negotiations present a challenge. Ifthe 13 candidate countries were to join the European Union today, the average number ofships detained flying the European flag would increase to 13.26% compared with 5.73% in1998. This high percentage is due to the very sub-standard performance of ships flying theflag of certain applicant countries, notably Malta and Cyprus, which have the fourth and fifthlargest fleets in the world.

Such a fall in the level of safety of EU shipping is unacceptable and cannot be justified byenlargement. It is therefore essential that the candidate countries undertake to apply theinternational and European maritime safety standards scrupulously as soon as possible but notlater than by the date of their accession.

The Commission has already notified them of its serious concerns in this area and has enteredinto specific discussions to help them remedy this situation. More particularly, theCommission has focussed on the transposition by Cyprus of the existing Communitylegislation. In its consolidated report on enlargement to the Helsinki European Council, theCommission stated that Cyprus and Malta will have to make substantial efforts to reach thelevel of the other Member States. Specific measures to this effect have already been adoptedby the Cypriot authorities, and the Commission is currently verifying their application. Othermeasures will have to follow.

In view of the insufficient safety standards of the fleets of most candidate countries and theparticular need to strengthen both their flag State Administrations and their port State controlsystems, the EU has identified alignment of legislation on "maritime safety" as a short-termpriority in the revised 1999 Accession Partnerships for most acceding countries, includingCyprus and Malta.

Improving the performance of the candidate countries as flag States is of crucial importanceto the Commission in the context of the accession negotiations. The Commission will provide

28 Another issue related to marine accidents is the availability of ports of refuge for ships which get intodifficulties. There is often a reluctance by local authorities to admit a vessel which is perceived to beunsafe or a pollution threat, while sending it further out to sea could increase the danger or result inmore widespread pollution. This is another problem which could be addressed in this context.

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these countries with all the necessary aid and expertise, but will not cease to insist that theymust apply all the relevant Community legislation at the date of their accession.

4. Towards a European structure for Maritime Safety

As a result of the questions raised about the effectiveness of safety inspections in Communityports following the Erika accident, a great deal of support was voiced for creating a Europeancoastguard or a European Maritime Safety Agency.

Such a debate would have been unthinkable ten years ago. The situation today has evolvedconsiderably. Some of the Member States' national competencies in the field of maritimesafety have been transferred to the Community level. The body of Community legislationcovers the key aspects of the IMO Conventions in force, its main objective being to ensureefficient and uniform application of the international safety rules in the European Union.

A European structure, whatever form it takes29, should be limited to supporting the action ofMember States and the Commission in applying and monitoring Community legislation andin evaluating the effectiveness of the measures in place. To this end, such a structure shouldhave the task of collecting and analysing factual or statistical information without beingempowered to take decisions. It could be entrusted withad hocevaluations or audit missions(e.g. assessing classification societies on the basis of the criteria in the Annex to Directive94/57/EC). It would be up to the Member States, and in particular the Commission in itscapacity as executor or guardian of Community legislation, to perform the necessary follow-up.

It would be somewhat unrealistic, or at least very premature, to envisage setting up anintegrated European operational structure or coastguard that would take over the role of thenational maritime administrations.

The administrative structures involved in maritime safety differ considerably from oneMember State to another: some are civil, others military and they perform very different tasks,from ship inspection as port State or flag State to fisheries protection, customs, combatingdrug trafficking or immigration controls. Unlike certain countries such as the USA, whichhave a unitary structure and thus the ability to impose uniform procedures and verifycompliance, the European Union has to work with the diverse administrative traditions of itsMember States.

The Commission therefore believes that the establishment of a European structure forMaritime Safety should be considered, which could be entrusted with the following tasks:

– assessment and audit of classification societies,

– on-the-spot inspection of the conditions under which Member States carry outport State control of ships,

29 Any decision on this issue shall be made in the light of the outcome of the general debate on theexternalisation of Commission tasks.

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– contribution to European training courses for port State control inspectors orflag State inspectors,

– fact-finding missions in the applicant countries, in order to assess the mannerin which their maritime administrations comply with their obligations as flagStates and port States,

– information gathering and processing of statistics,

– operation of Commission databases (e.g.: database on inspection of passengerships under Directive 1999/35/EC).

All of these tasks should be performed exclusively by personnel highly qualified in the area ofmaritime safety who have both comprehensive technical knowledge and are fully familiarwith European and international maritime safety and pollution prevention regulations. In thelonger term, the possibility should be examined of assigning broader tasks to this structure,e.g. relating to the control of shipping, because of the possibilities offered by the newpositioning technologies.

5. Liability of the maritime players

a) The civil liability system in force for damage caused by oil pollution

The existing maritime liability regime has developed over centuries and is consequently acomplex one. It consists of a patchwork of international conventions relating to specific typesof liability and a variety of rules on limitation of liability, insurance and jurisdiction, oftengoverned by national laws which depend on whether - and if so, what version of - theconventions have been ratified by the States concerned. Generally speaking, the regimeemphasises the responsibility of the shipowner, as opposed to that of the other playersinvolved (such as the ship operator, manager, cargo owner, charterer, intermediaries or theclassification society). On the other hand, shipowners have a right to limit their financialliability at a maximum amount, which normally is relatively low.

In the case of oil pollution, however, the international liability system is tailor-made for thepurpose and comparatively straightforward. All EU coastal States are either parties to, or inthe process of ratifying, the 1992 Protocols to the International Convention on Civil Liabilityfor Oil Pollution (CLC) and the International Convention setting up the Oil PollutionCompensation Fund (Fund Convention). These two conventions establish a two-tier liabilitysystem, which cover pollution damage, including preventive measures and to a limited extentenvironmental damageper sefor accidents occurring in the coastal waters (up to 200 miles)of the States.

The first tier consists of the liability of the shipowner, which is governed by the CLC. Theshipowner’s liability is strict and thus not depending on fault or negligence on his part. Theowner is normally allowed to limit his liability to an amount which is linked to the tonnage ofthe ship, presently maximum EUR 80 million for the biggest ships, in the case of Erika onlyaround EUR 13 million. The shipowner loses the right to limit his liability only if it is provedthat the pollution damage resulted from his personal act or omission, committed with theintent to cause damage, or recklessly and with knowledge that such damage would probably

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result. The CLC also requires shipowners to have liability insurance and gives claimants theright of direct action against the insurer.

The CLC regime is supplemented by the International Oil Pollution Compensation Fund(IOPC Fund), which was established through the Fund Convention in order to compensatevictims when the shipowner’s liability is insufficient to cover the damage. The Fund isfinanced by contributions from companies receiving oil and recourse to the Fund may takeplace in three cases. The most common is where the damage exceeds the shipowner’smaximum liability. The second case is where the shipowner can invoke any of the (few)defences allowed in the CLC. The last case is where the shipowner is financially incapable ofmeeting his obligations. The maximum compensation by the Fund is aroundEUR 185 million.

Victims of oil spills may present their claims directly against the Fund and, to the extentclaims are justified and meet the relevant criteria, the Fund will compensate the claimantdirectly. If the total of approved claims exceeds the maximum limit of the Fund all claims willbe reduced proportionately. If the claimant and the Fund cannot reach agreement, the claimantcan pursue his claim against the Fund before the courts of the State where the damageoccurred. Since it was first established in 1978, the Oil Pollution Compensation Fund hasdealt with some 90 cases, most of which have been settled directly with the Fund, outsidecourts.

Generally speaking, this dual regime has proved to be workable. Particularly when comparedto other areas of pollution liability which are currently unregulated (such as accidentsinvolving hazardous and noxious substances other than oil, or bunker oil from ships otherthan oil tankers), the regime is very advanced. Therefore the Commission believes that theexisting oil pollution compensation regime should provide the basis for future measures. Ageneral environmental liability regime, as outlined in the recent Commission White Paper onenvironmental liability,30 is the appropriate tool for developing areas of liability which are notyet harmonised at a European level. However, liability and compensation for oil pollutionfrom ships is already subject to a uniform world-wide regime. The existing system providesthe legislative framework and the internationally recognised concepts upon which Europeanmeasures could and should build.

b) Measures proposed to improve the existing regime

At least the following three criteria have to be examined when considering whether a liabilityand compensation system is fully satisfactory:

(1) It should provide prompt compensation to victims without having to rely on extensiveand lengthy judicial procedures.

(2) The maximum compensation limit should be set at a sufficiently high level to coveradmissible claims from any potential disaster occurring as a result of an oil tankeraccident.

30 COM(2000) 66 final, 9 February 2000.

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(3) The regime should discourage tanker operators and cargo interests from transportingoil in anything other than tankers of an impeccable quality.

The Commission considers that on the first point the mechanism provided by the CLC andFund Convention is satisfactory. Generally speaking, claims have been handled promptly andwithout lengthy legal battles.

On the second point action is needed. As long as the maximum limits are not high enough tocover any potential disaster, victims of an oil disaster with very extensive damage will receiveless compensation than victims of a smaller-scale accident. This is questionable from a pointof view of principle and some recent oil spills have indicated that even comparatively smallamounts of oil may raise doubts as to the sufficiency of the current limit.

On the third point, the existing system also fails. The right of the shipowner to limit hisliability is at present practically unbreakable. Cargo interests, on their part, have no individualresponsibility at all. The fact that ships of an appalling condition continue to be employed fortransportation of oil shows that charterers do not have sufficient disincentives to give up theirintolerable practice of deliberately selecting low-quality tonnage.

For these reasons the Commission proposes the following actions.

i) Strengthening the international regime

As a first step, the immediate raising of the limits of both the CLC and the Fund conventionsis important. Provided that the necessary majority is achieved, the limits can be increasedthrough the simplified tacit acceptance procedure which was introduced in the 1992Protocols.31 This measure would considerably raise (by some 50%) the compensationavailable and would share the financial burden between shipowners and oil receivers.

In the meantime, the need for a more fundamental revision of the CLC and Fund conventionsshall be examined. In particular, it has to be questioned whether the current threshold for lossof limitation right for the shipowner is acceptable. Another question that needs to be givenserious consideration is whether the current definition of pollution damage should beextended.

The Commission urges the Member States to do their utmost to support any effort to improvethe existing oil pollution liability regime at an international level.

ii) A European third tier Fund

The Commission is aware that the international procedures that have to be followed toachieve concrete results are lengthy and that there is no guarantee of success. Therefore, ittakes the view that complementary action at a European level is needed in order to ensureadequate compensation for victims of an oil spill occurring in European waters.

31 Article 15 of the 1992 Protocol to the CLC and Article 33 of the 1992 Protocol to the Fund Convention.Any amendment made under these articles will enter into force at the earliest 36 months after itsadoption by the IMO Legal Committee.

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Adequate compensation of victims of a European oil spill can be ensured through the creationof a European third liability tier, which would compensate internationally eligible claimsrelating to oil spills in European waters exceeding the maximum limitation limits. Liabilityunder such a European third tier could be based on the same principles and rules as thecurrent IOPC Fund system, but subject to a ceiling which is deemed to be sufficient for anypotential disaster and financed by European oil importers, in the same way as they contributeto the IOPC Fund. It is considered that an overall ceiling of EUR 1 billion would provide thenecessary safeguard of coverage for any potential disaster. This limit corresponds both to theceiling of the oil spill compensation fund established under federal laws in the United Statesand to existing insurance practices as regards shipowners’ third party liability cover for oilpollution.

An international agreement between the EU/EEA Member States on the additionalcontributions for the European Fund would seem the appropriate way forward.

iii) Liability for damage

The Commission will also consider the introduction of rules, at EU level, under which anyparty who has caused or contributed to oil pollution damage, should be made strictly liable forthe damage caused; this can concern parties both on the carriers and the chartering side, to theextent that they are exercising control of the shipment concerned. This would enhance theimplementation of the polluter pays principle and thus be in line with the Commission’sWhite Paper on Environmental Liability of 9 February 2000 (COM(2000) 66 final).

iv) Sanctions for gross negligence

The Commission finally considers that any party who has caused or contributed to the oilpollution incident by grossly negligent behaviour should be subject to a deterrent sanction.

Such a fault-based sanction could apply to shipowners as well as charterers and other cargointerests. Making the sanctions payable to the State where the pollution occurred would seemappropriate in this context, as the national government normally is the party responsible forclean-up and rescue operations. Such sanctions could further be subject to a number ofcommon principles, depending on,inter alia, the response and co-operation by theresponsible party after the accident, and could thus contribute to significant preventive effects.

The Commission accordingly considers that it should be examined, having regard to theprinciples of the Treaty, how such a fault-based sanction regime could be put in place in theCommunity. A Community legal instrument laying down the common principles for theimplementation of appropriate sanction mechanisms at Member State level would seem to bea way forward.

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C : VOLUNTARY AGREEMENT WITH INDUSTRY

Without awaiting the entry into force of the legal measures proposed above and withoutawaiting the results of the measures to be undertaken in the second phase, the Commissionproposes, in support of its "Quality Shipping" initiative, to discuss with the oil companiespossible terms of a voluntary agreement. Such an agreement would establish certainprinciples according to which the oil companies would agree to operate, such as:

• not to transport oil in vessels above 15 years of age, unless their safety has beenproven through adequate inspection;

• to exercise more transparency relating to their ship chartering practices;

• to contribute to the third layer European compensation Fund for the benefit ofvictims of oil spills;

• to improve the effectiveness of their private inspection schemes; and

• to define their responsibilities in chartering oil tankers.

The Commission will report on the outcome of such discussions to the Council meeting ofTransport Ministers in October 2000.

CONCLUSION

The Commission proposes to the European Parliament and the Council that they:

• adopt the three proposals for legislative measures attached to this communication as soonas possible,

• approve the main guidelines described in the second set of measures,

• take note that the Commission will enter into discussions with a view to conclusion ofvoluntary agreements with the oil industry, and report on the outcome.

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ANNEX 1 A

TANKER ACCIDENTS

This Annex firstly provides details of theErika accident and then gives a short account ofsignificant tanker accidents in EU waters and some others which are seen as relevant to thecase ofErika.

A. ERIKA disaster - summary of events

1. The accident

Erika sailed from Dunkerque on 10 December 1999 loaded with approximately

30 000 tonnes of heavy fuel oil, bound for Livorno in Italy. The ship was chartered by theTotal-Fina oil company. On the afternoon of 11 December, when approaching the Ushanttraffic Separation Scheme, the ship developed a large starboard list, thought to be because ofleakage of cargo into a ballast tank. The Captain transmitted a distress message, which wassubsequently cancelled after transferring ballast to correct the list. The ship altered course forthe oil port of Donges (France), as a port of refuge.

By the evening of 11 December cracks had begun to appear on the main deck above no.2ballast tank, and the list had worsened. In deteriorating weather attempts were once againmade by the crew to correct the list by transferring ballast and cargo.

In the early hours of 12 December a second distress message was sent informing that somehull plating had washed away. The French authorities immediately initiated a search andrescue operation. By 0645 the helicopter evacuation of the crew had begun. Shortly after 0800the hull fractured in the way of No. 2 ballast tank and broke in two in a position 40 nauticalmiles south of Pointe de Penmarc’h. The whole crew was safely rescued.

Salvage tugs began the operation of towing the two hull sections further away from the coast.However both sections sank on 13 December.

2. Details of the ship:

Erika was a 37 000 tonne deadweight single-hulled tanker built in Japan in 1975, registeredin Malta since 1993 and classed with the Italian Classification Society RINA, havingtransferred from Bureau Veritas in June 1998. The ship was owned by the Tevere ShippingCompany of Malta. The tanker was converted in 1997 by designating Segregated Ballasttanks.

During her 25-year life the ship had changed name seven times and had been classed by fourdifferent Classification societies. She had flown the flags of Liberia and Japan beforebecoming registered in Malta.

The SIRENAC database of the Paris Memorandum of Understanding on port State controlshows thatErika was subjected to four inspections since November 1997. Although revealingcertain deficiencies no major structural problems were noted.

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In 1998 the ship underwent a special survey by RINA in Montenegro, where 100 tonnes ofsteel was renewed in the ship’s tanks. In November 1999 (just before the accident,) a RINAsurveyor recommended that thickness measurements be carried out on longitudinal stiffenersin the ballast tanks. The ship was permitted to sail on condition that the checks werecompleted in January 2000.

3. Preliminary conclusions

The preliminary report of the French accident investigation32 concluded that the ship sufferedmajor structural failure, initially causing cargo to leak between cargo and ballast tanksrequiring transfer of weight on board to correct the resulting list. Later, in deterioratingweather conditions, the hull completely fractured in the way on no.2 ballast tank resulting inthe ship breaking in two.

4. Consequences of the accident

On being informed of the break-up and sinking ofErika and the ensuing pollution threat, theEuropean Commission immediately activated its emergency team and offered the Frenchauthorities the services of the Community Oil Pollution Task Force experts, costs being borneby the Commission. The Commission provided a liaison officer between the Frenchauthorities and assisting foreign vessels. The estimated initial spill was 10000 tonnes of heavyfuel situated about 60 km off the French coast (South Brittany).

The two halves of the vessel lie in about 120 metres of water and are thought to contain about15 000 tonnes of oil. Since the sinking more oil has been reported as leaking from the wreck.Since the accident Total Fina SA, the owner of the cargo, has entered into an agreement withthe French Government to take action to prevent further escape of oil from the two halves anddirectly finance all related inspections and, if feasible, oil removal operations from the wreck.

The cost of the total damage caused by the accident is not yet known, however a number ofclaims have already been received by the Claims Handling Office established in Lorient bythe vessel underwriters (Steamship Mutual Underwriting Association (Bermuda) Ltd.) and theIOPC 1992 Fund.33

32 NAUFRAGE DU PETROLIER “ERIKA” published by Ministère de l’Equipement des Transports et duLogement, 13.01.2000

33 See chapter 2 paragraph 5 for details of liability and compensation regimes.

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B. Other tanker accidents

Between January 1992 and March 1999 the world total losses, all ship types, was reported tobe 593 merchant vessels of 8.0 million tdwt.

0-4 years 5-9 years 10-14 years 15-19 years 20-24 years 25+ TOTALShip type

N°ships

1000dwt

N°ships

1000dwt

N°ships

1000dwt

N°ships

1000dwt

N°ships

1000dwt

N°ships

1000dwt

N°ships

1000dwt

Tankers(all)

- - 2 280 2 42 13 985 35 1032 25 188 77 2527

All ships 10 100 11 343 50 611 114 2083 202 3424 206 1477 593 8037

Tanker losses compared to total ship losses (over 500 gt.)

During the same period the world total of reported tanker (all categories) losses amounted to77 vessels with 2.5 million tdwt. Tankers account for only 13% of the number of ships of totallosses. However in terms of tonnage lost the impact is bigger as accidents involving tankersaccount for 31% in deadweight terms of the world total tonnage lost.

Since theTorrey Canyon ran aground on the Seven Stones’ Reef off Lands End in 1967there have been a number of major tanker accidents in EU waters resulting in severe oilpollution. All these except one involved large tankers carrying crude oil. The one exception,Erika , was carrying heavy fuel oil.

CAUSES

Tanker accidents falling into three main categories:

– Grounding, because of navigational or pilotage errors (Sea Empress, Torrey Canyon,Aegean Sea)

– Grounding because of mechanical failure, (Amoco Cadiz, Braer)

– Fire and explosion caused during on-board operations, (Haven)

– Collision with another vessel, followed by fire / explosion. (British Trent)

– Collision with another vessel, resulting in pollution. (No fire.)

– Structural failure. (Betelgeuse, Mimosa, Erika).

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MAJOR TANKER ACCIDENTS IN EU WATERS CAUSING POLLUTION

NAME DATE PLACE FLAG DWT.(t) SPILL 34

(T)TYPE CAUSE

TORREYCANYON

1967 OffLandsEnd

LIB 120000 119000 Crude Navigational error-

Grounded

URQUIOLA 1976 LaCoruña

SPA 110000 100000 Crude Navigational error –Grounded

AMOCOCADIZ

1978 OffBritanny

LIB 220000 223000 Crude Steering gear failure-

Grounded

BETELGEUSE 1979 BantryBay(IRE)

FRA 115000 44000 Crude Hull failure whiledischarging cargo. Corrodedballast tanks

HAVEN 1991 OffGenoa

CYP 232163 144000 Crude Fire & explosion

AEGEANSEA

1992 LaCoruña

GR 114000 74000 Crude Grounded & explosion

Human error

BRAER 1993 ShetlandIs.

LIB 84700 85000 Crude Engine failure- grounded

Crew competence

SEAEMPRESS

1996 MilfordHaven

LIB 147000 72000 Crude Navigation error-

Grounded

ERIKA 1999 OffBritanny

MAL 37000 10000+ HeavyFuel

Broke in two – sank.

34 Source of pollution figures: ITOPF

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Major tanker accidents causing pollution in EU waters

TORREY CANYON

Torrey Canyon was a 120 000 tonne deadweight Liberian-flagged tanker which ran agroundon the Seven Stones’ reef between Land’s End and the Isles of Scilly on 18 March 1967. Thisresulted in 119 000 tonnes of crude oil being spilled causing severe pollution along the coastsof south west England and northern France. The cause of the grounding was primarily humanerror in the form of bad navigation. The accident led to the establishment of much morestringent regulations specifically for tankers in the form of the IMO International Conventionfor the Prevention of Pollution from Ships (MARPOL).

URQUIOLA

On 12 May 1976 the tankerUrquiola struck a submerged object when entering La Coruña.As the cargo was leaking from the ship it was ordered out of the harbour because of thedanger of fire and explosion. While being assisted out of the harbour it grounded againcausing further damage. The ship exploded two hours later killing the captain. A total of 100000 tonnes of oil was spilled. The initial cause of the accident was a navigational error, whichwas compounded during the attempt to tow the ship away from the port.

BETELGEUSE

On 8 January 1979 the French tankerBetelgeuse, owned by Total, exploded whiledischarging crude oil in Bantry Bay, Ireland. The official enquiry concluded that the cause ofthe explosion was hull fracture caused by stressing the hull during cargo operations. A majorcontributing factor was serious steel wastage due to corrosion in the ballast tanks. The ownerswere censured for deciding not to renew badly corroded longitudinal stiffeners at her secondspecial survey. The ship was classed with Bureau Veritas.

AMOCO CADIZ

On 17 March 1978 the Liberian-flaggedAmoco Cadizran aground on the north-west coast ofBrittany and lost its entire cargo of 223 000 tonnes of crude oil. The tanker had lost its abilityto steer in heavy weather and ran aground while attempts were being made to take it in tow.The ship subsequently broke up in heavy weather. Again the human element was a majorfactor as well as technical failure. Amendments to the regulations on steering gear have sincebeen adopted.

HAVEN

On 11 April 1991 the Cyprus-flagged 232 163 tonne tankerHaven, part-loaded with crude oilexploded off Genoa reportedly during pumping operations. The explosion caused the ship tobreak into three parts and resulted in a major fire and about 74 000 tonnes of crude oil spilled,much of which was consumed in the fire. Lives were lost in the accident.

AEGEAN SEA

On 3 December 1992 the 114 000 tonne Greek-flagged ore-bulk-oil (OBO) carrierAegeanSea, carrying 80 000 tonnes of crude oil, grounded on rocks in bad weather while entering LaCoruña, Spain. The pilot was just about to board the ship when she grounded. The impact

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fractured the hull spilling about 74 000 tonnes of oil which subsequently caught fire and theship exploded. Being an OBO shipAegean Seahad a double hull. The cause of the accidentwas again human error caused by faulty navigation in bad weather conditions.

BRAER

The Liberian-flaggedBraer was en-route from Norway to Montreal in January 1993 whenher engine failed 10 miles south of the Shetland Islands, UK. The reason for the breakdownwas water contamination of the fuel, caused by seawater entering air vents to fuel tanks,which had fractured on deck because of improperly secured spare steel piping. The vessel ranaground on Shetland in bad weather on 5 January losing her entire cargo of 84 700 tonnes ofcrude oil. Attempts to take the tanker in tow before she grounded were unsuccessful.

SEA EMPRESS

The Liberian-flaggedSea Empressalso ran aground at the entrance to Milford Haven on 15February 1996 while under pilotage. She was carrying 131 000 tonnes of crude oil. She was asingle-hulled three-year old ship. Severe hull damage resulted in about 72 000 tonnes of oilbeing spilled causing serious pollution to the South Wales coastline.

The cause of the accident was primarily navigational errors made while piloting the ship intothe harbour, combined with a lack of information on the prevailing tidal streams and currents.The enquiry also highlighted shortfalls in the management of the port and the aftermath of thegrounding.

Other significant tanker accidents

EXXON VALDEZ

TheExxon Valdezran aground in Prince William Sound, Alaska, on 24 March 1989.

37 000 tonnes of crude oil were spilled. Although not the largest of oil spills it is consideredto be one of the most environmentally damaging spills because of the nature of the area. Theprincipal cause of the grounding was attributed to faulty navigation. This accident led to the1990 US Oil Pollution Act (OPA 90) which imposed far stricter requirements on tankersoperating in US waters.

BRITISH TRENT

On 3 June 1993 the 25 147 tonne Bermudan-registered product tankerBritish Trent collidedoff the Belgian coast with the Panamanian-flagged bulk carrierWestern Winner in thick fog.The tanker caught fire and her cargo of unleaded petrol exploded. Most of the spilled cargowas consumed by fire and lives were lost. No pollution resulted. The collision was caused bynavigational errors in reduced visibility.

BORGA

Borga was a new tanker constructed with a double hull. On 29 October 1995 she ran agroundwhilst under pilotage entering Milford Haven (UK). She was loaded with 112 180 tonnes ofcrude oil. Although the ship suffered hull damage there was no pollution and after discharging8 500 tonnes into a lightering ship she was refloated.

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The prime cause of the accident was a navigational error while the ship was turning in anarrow channel.

This incident has been cited to underline the argument that double-hulled tankers present areduced pollution threat, although it has to be remembered thatAegean Seawas also a doublehulled ship, but caught fire and exploded after grounding.

MIMOSA

On 11 January 1995 the 300 000 tonne deadweight Liberian flagged ULCCMimosa sufferedserious structural failure whilst on loaded passage off Scotland. A large section of the hullshell plating fell off in moderate weather leaving a large hole in the fore peak ballast tank.

The 18-year-old ship was classed with DNV and had passed the charterer’s vettingprocedures. The cargo was eventually off-loaded to another tanker and the ship proceeded toPortugal for repairs. No pollution resulted.

NAKHODKA

In January 1997 the 20 471 tonne deadweight Russian tankerNakhodka broke up off theJapanese coast in heavy weather. She was carrying a cargo of heavy fuel oil which causedJapan’s worst oil pollution incident. The enquiry found that the cause was poor hullmaintenance and old age, with the hull steelwork severely wasted. The accident led to Japanproposing that IMO should bring forward the dates for phasing out single hulled tankers.Recently at IMO Japan has remarked upon the similarity between this incident andErika .

VOLGONEFT 248

On 29 December 1999 the Russian tankerVolgoneft 248 ran aground in bad weather andbroke up off Istanbul spilling 1 300 tonnes of heavy fuel. The ship was 25 years old and wasapparently limited to seasonal trading in light weather.

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ANNEXE 1-B

Double hull or equivalent design tankers

There are many tanker design concepts, which have been proposed to reduce the risk ofpollution in the event of an accident. International attention is increasingly focused on threemain types: the Double Hull tanker, the Mid-deck tanker and the Coulombi Egg tanker. Atypical cross-section for each of these types is shown below.

The Double Hull Tanker

This type of vessel derives its defence against oil spillage, in the event of grounding orcollision, by surrounding the entire cargo tank length by a 2 or 3 metre wide void space whichseparates the cargo tanks from the outer skin of the vessel. In order for an oil spillage to occurthe damage has to rupture two skins.

The Mid-deck Tanker

As an alternative to the double hull design, tankers may incorporate the "mid-deck" conceptunder which the pressure within the cargo tank does not exceed the external hydrostatic waterpressure. Tankers built to this design have double sides along the entire cargo tank lengthproviding a 4 to 5 metres wide void space which separates the cargo tanks from the outer sideskin of the vessel. They have no double bottom and the cargo is in direct contact with thebottom shell. However, the cargo tanks are split horizontally by an oil-tight deck. The heightof the oil-tight horizontal deck is chosen so that in the event of bottom damage the externalwater pressure should exceed the head of oil in the lower cargo tanks thus forcing the oil to beretained within the vessel.

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The Coulombi Egg design

At first sight this configuration appears to be a variant of the mid-deck tanker but it differs inthree important respects from that type. Firstly the width of the wing tanks is about 50%greater, secondly the wing tanks are divided horizontally into upper and lower tanks with thelower wing tanks dedicated to cargo, and thirdly the upper wing tanks are not only dedicatedsegregated ballast tanks but also perform the function of "rescue tanks". The Coulombi Eggtanker has an emergency cargo transfer system which allows oil from damaged cargo tanks tobe directed into the sound empty upper wing tanks, thus minimising the oil lost to the sea inthe event of a collision or grounding. The system utilises the fact that the external pressurefrom the sea due to the vessel's laden draught will be greater than that due to the head of oil inthe damaged cargo tanks, thus the oil in the damaged cargo tanks will be forced into the"rescue tanks".

Note: The United States does not consider the Coulombi Egg tanker design as equivalent tothe double hull design and tankers meeting the Coulombi Egg design will not be allowed inUnited States ports.

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LEGISLATIVE PROPOSALS

48

LEGISLATIVE PROPOSAL I

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Council Directive 95/21/EC concerning the enforcement, in respect ofshipping using Community ports and sailing in the waters under the jurisdiction of the

Member States, of international standards for ship safety, pollution prevention andshipboard living and working conditions (port State control)

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EXPLANATORY MEMORANDUM

The wreck of the Erika focused attention on several weaknesses in the current system of portState control. None of the many inspections of the Erika over the last few years in theframework of port State control, by the classification societies or by the oil companies' privateinspection systems had detected the shortcomings judged to be at the origin of this accident.

Since Directive 95/21/EC was adopted, substantial efforts have been made - particularlyunder the auspices of the Paris Memorandum of Understanding on Port State Control - toimprove the uniformity and efficiency of inspection procedures. However, importantdisparities still remain within the Community and ships that pose a high risk to theenvironment are not inspected with sufficient rigour when they call at European ports.

The reasons that have led the Commission to propose amending the Directive include thefollowing:

- several Member States are still failing to comply with the 25% threshold laid down in theDirective for inspections of individual ships;

- the target factor system developed in the framework of the Paris MOU and made mandatoryby the Directive is not being applied in a satisfactory manner;

- examination of the reports on the inspections carried out before the sinking of the Erikaseem to show that the expanded inspections conducted in application of the Directive werenot always performed with the necessary rigour. Furthermore, it has not been possible fromthis examination to verify the extent to which the guidelines in Annex V were followed andwhat checks were made.

The Commission therefore proposes a number of measures designed to improve andstrengthen the inspection regime laid down in the Port State Control Directive.

The following amendments are proposed:

1. Banning manifestly sub-standard ships from European waters

The Commission considers it unacceptable that certain ships with a history of posing amanifest danger to maritime safety and the marine environment continue to sail inCommunity waters. The general public can only interpret this as demonstrating theineffectiveness of the on-board inspection of ships performed by the port States.

It considers that a clear and strong message must be sent to the ships' operators and to allthose - in particular the flag States or the classification societies - who, by their behaviour orinaction, contribute to the considerable risks to safety and the marine environment.

The Commission therefore proposes banning such ships from the European Union. Thisconcerns ships in the risk categories referred to in Article 7 and Annex V to the Directive.35

Ships of this category that are old (more than 15 years), that may be considered as "pastoffenders" (detained more than twice over the last two years), and that fly the flag of a State

35 Annex V to the Directive provides for a system of expanded inspection for certain categories of ship(oil tankers, gas and chemical tankers and bulk carriers above a certain age, and passenger ships).

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on the "black list" of detentions established by the Paris MOU should no longer be admittedto Community ports.

The Commission has drawn up guidelines for the application of this measure, setting out theprocedures to be followed in imposing a ban and also providing the possibility to lift the banif it can be shown that the ship is no longer a safety or environmental hazard. TheCommission will publish the list of banned ships every six months.

2. Obligation to inspect ships posing a high risk to maritime safety and the marineenvironment

Directive 95/21/EC, as it stands, does not stipulate an obligation to inspect a ship. Whateverthe potential hazard posed by a ship, the decision to inspect is always initially based on a priorselection made by a port State inspector on the basis of his professional judgement. The targetfactor introduced by an amendment to the Directive on 19 June 1998 is an important steptowards harmonising the selection criteria. Nevertheless, the Commission considers that theinspector's margin of discretion in selecting the ships to be inspected should in certain casesbe considerably reduced in the interests of achieving truly uniform and efficient practices.

The Commission therefore proposes making inspection obligatory in the following cases:

(a) –If the target factor exceeds a certain limit

The targeting system established by the Directive and the Paris MOU is not workingentirely satisfactorily. Ships with the highest target factor are not in practicesystematically assigned the highest priority.

The Commission proposes including in Article 5 a specific obligation to inspectsystematically any ships whose target factor exceeds 50, according to the procedurelaid down in the Paris MOU, each time they call at a port of the European Union.The figure of 50 corresponds to ships posing a high risk. However, according to theestimates made in the context of the Paris MOU based on the number of shipsinspected in 1999, the percentage of ships affected is likely to be less than 2.5% ofthe vessels recorded in the Sirenac database of the Paris MOU.36

(b) – If the ships concerned are classed in a category justifying expanded inspection

The provisions of the Directive relating to the expanded inspection regime for "highrisk" ships gives inspectors too wide a margin of discretion to decide which ships toinspect and what is to be included in the inspection. Furthermore, recent events haveshown that the structural defects affecting certain types of ships and oil tankers inparticular may lead to accidents with dramatic consequences for the environment.Without questioning the basic responsibility of the classification societies to detectsuch faults, it is important that the port State authorities equip themselves with themeans to assess the satisfactory structural condition of a ship (particularly as regardscorrosion of the tanks).

The Commission therefore proposes changing the expanded inspection regime forships referred to in Article 7 and in Annex V to the Directive as follows:

36 Sirenac, operated by theCentre Administratif des Affaires Maritimesin Saint-Malo (France), is adatabase of information relating to inspections carried out by the member countries of the Paris MOU.

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– Article 7 is amended to establish a clear obligation to inspect the ships inquestion. Consequently, whenever one of these ships calls at a port of theEuropean Union after a period of 12 months, it must without exemptionbe subjected to an expanded inspection. The existing rule, according towhich the ship may in the intervening period be subject to a normalinspection or a more detailed inspection, is maintained. However, the25% threshold stipulated in Annex V is applicable to expandedinspections carried out in the framework of Article 7 (and to any otherinspections provided for by the Directive).

– The optional guidelines in the Directive are made mandatory: theinspection must at least cover the general or specific checks for thecategories of ship concerned. However, the proposal allows thepossibility of not carrying out certain checks if they are not practicallyfeasible (e.g. inspection of the tanks on a loaded oil tanker) or if they arelikely to create particular hazards (e.g. explosion) for the ship, its crew orthe port.

– With regard to oil tankers (item 2 of the current Annex V-B), structuralmatters are addressed only in the form of a check of the survey report.The Commission believes it is essential that the structural inspectionshould encompass more than a check of the documents on board and bebased on a direct, visual examination by the inspector of the structuralcondition of the ship. However, as cargo tanks are not normallyaccessible during a port call, the inspector must carry out a visualexamination of at least one of the ballast tanks in order to gain a generalimpression of its possible degree of corrosion. If the ship does not havesegregated ballast tanks, the inspector should attempt to carry out such anassessment on the basis of any tank or empty space normally accessible.

– An advance notification obligation is introduced (new section B ofAnnex V) to facilitate the subsequent conduct of the inspection once theship enters port. In principle, an expanded inspection must be prepared inadvance. The shipowner or ship's master will be obliged to communicatecertain operational information (e.g. duration of the call, state of theballast and cargo tanks, operations planned during the call, etc.) directlyto the inspector 48 hours before arrival at the port (or from the port ofdeparture).

– Specifically with regard to oil tankers, the age from which expandedinspections have to be carried out will be reduced to 15 years (currently20 or 25 years depending on the type of tanker in accordance with theprogressive phase-out dates laid down in Regulation 13G of theMARPOL Convention). The vessels concerned are single hull tankers,whether or not they have segregated ballast tanks.

3. Follow-up to the result of inspections

The follow-up of inspections between ports is not ideal. Above all, it is extremely difficult toascertain, from the information in the Sirenac system, which parts of the ship inspected werechecked in the previous port or ports. As a result, there is a risk that the inspection authority ina given port will inspect again the parts of the ship that have already been checked in the

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previous port. In order to avoid the possibility of such duplications and to optimise the overallcost-effectiveness ratio of the port State control system, the Commission proposes making itobligatory to state which parts of the ship have been inspected in the inspection report (a copyof which is kept on board and must be examined by the inspector of the following inspectionport).

4. Informing the flag State and the classification societies

Under Directive 95/21/EC as it stands, the flag State and the classification societies areinformed only of the detention of a ship by the port State inspection authorities. However,information on completion of each inspection would be extremely useful in permitting moreefficient monitoring of the evolution (and possible deterioration) of the condition of a ship bythe administration of the flag State, or by the classification society acting on its behalf.Consequently, the Commission proposes amending Article 8 of the Directive to stipulate thetransmission of a copy of the inspection report to the flag State and to the classificationsociety concerned.

5. Verification of the financial guarantee covering pollution risk

As the Erika accident has shown, oil tankers can cause considerable damage in the event of anoil spill, so that appropriate cover of these risks is extremely important. The 1969International Convention on Civil Liability for Oil Pollution Damage, and the 1992 Protocolrelating thereto, stipulates that the owner of a ship registered in a State party to theConvention and carrying more than 2 000 tonnes of oil in bulk must take out an insurance orother financial guarantee to cover its liability for pollution damage. The Commissionproposes adding these documents to the list of certificates in Annex II to the Directive to beverified by the inspectors. Their absence should be taken as justifying a more detailedinspection of the ship and constitutes a ground for detention.

6. Transparency of information on the ships inspected or detained in accordance with theDirective

The aim of Article 15 is to publish certain information on the ships detained in the ports of theEuropean Union and in this way to punish operators who bear part of the responsibility forfailure to comply with safety standards. The existing Directive provides for publishing thename of the ship's operator and the classification society. However, other players areimplicated in the phenomenon of sub-standard shipping, in particular the cargo ownersdeciding to charter a particular ship: shipowners of "convenience" exist because there arecharterers who care little about the quality of the ships they charter.

The other objective is to give those who take the decisions (charterers, insurers, etc.) and theEuropean public a fuller and more user-friendly picture of the inspections carried out inCommunity ports. To this end, it is important that additional information on more detailedinspections should be made available both by the port State authorities (expanded inspectionswithin the meaning of Article 7) and by the classification societies (special surveys). There isalso a need for information to be made available regarding the follow-up by the port Stateauthorities or the classification societies to a detention ordered under the Directive.

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Consequently, publication of the following information is proposed:

– the identity of the charterer and the type of charter (voyage or timecharter). This obligation will concern only ships carrying bulk liquid orsolid cargo. In the case of packaged goods, identification of the many lotsconcerned would pose major practical problems;

– information on the most recent expanded inspection performed in thecontext of port State control, and the most recent "special survey" carriedout by a classification society;

– list of measures taken following a detention (deadlines set for repairs,etc.), whether by the port authorities or by the classification societies.

7. Monitoring application of the Directive and assessing the performance of MemberStates

Article 17 of Directive 95/21/EC stipulates that Member States must provide certaininformation on the number of inspectors allocated to port State control and the number ofindividual ships entering their ports in a representative calendar year.

This information enables the Commission to verify the compliance with the 25% threshold forinspections laid down in Article 5(1), but is not enough to enable it to carry out a detailedexamination of the proper application of the Directive's provisions, which is its duty under theTreaty, and to initiate, where necessary, infringement proceedings against defaulting MemberStates. Consequently, possible lax practices in certain Community ports are not detected andthe risks of varying safety standards and distortion of competition between ports persist.

The Commission therefore proposes increasing the frequency for transmission of this data(annually rather than every three years as at present) and adding new items to the list ofinformation to be transmitted to the Commission. A new Annex to the Directive is added,requiring Member States to provide detailed information to the Commission on themovements of ships in ports, classified according to various criteria (age, flag, size, etc.).

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2000/0065 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Council Directive 95/21/EC concerning the enforcement, in respect ofshipping using Community ports and sailing in the waters under the jurisdiction of the

Member States, of international standards for ship safety, pollution prevention andshipboard living and working conditions (port State control)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particularArticle 80(2) thereof,

Having regard to the proposal from the Commission,37

Having regard to the opinion of the Economic and Social Committee,38

Having regard to the opinion of the Committee of the Regions,39

Acting in accordance with the procedure laid down in Article 251 of the Treaty,40

Whereas:

(1) Directive 95/21/EC establishes a system of port State control of shipping in theEuropean Community based on uniform inspection and detention procedures.

(2) It is necessary to take account of the changes that have been made to the InternationalMaritime Organisation (IMO) conventions, protocols, codes and resolutions and ofdevelopments in the framework of the Paris Memorandum of Understanding (MOU).

(3) Some ships pose a manifest risk to maritime safety and the marine environmentbecause of their age, flag and history. They should therefore be refused access toCommunity ports, unless it can be demonstrated that they can be operated safely inCommunity waters. Guidelines must be established setting out the proceduresapplicable in the event of imposition of an access ban and of the lifting of such a ban.The list of ships refused access to Community ports must be published and displayedby the Sirenac information system.

(4) Ships with a high target factor present a particularly serious accident or pollution risk,justifying the need to inspect them at every Community port of call.

37 OJ C , , p. .38 OJ C , , p. .39 OJ C , , p. .40 OJ C , , p. .

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(5) The categories of ships listed in Annex V also present a major accident or pollutionhazard when they reach a certain age. The broad discretionary power of the inspectionauthority as to whether to select such ships for expanded inspection prevents theachievement of uniform practices within the Community. It is therefore necessary tomake inspection of these ships mandatory.

(6) The content of the expanded inspections for which guidelines have been laid down inAnnex V, section B is likely to vary considerably at the discretion of the inspectionauthority. These guidelines must therefore be made mandatory. However, there mustbe provision for making an exception when the conduct of an inspection of such ships,in particular in view of the state of the ships' cargo tanks or of operational constraintsrelating to loading or unloading activities, is impossible or would involve excessiverisks for the safety of the ship and its crew and for the safety of the port area.

(7) Structural defects in a ship are likely to increase the risk of an accident at sea. In thecase of a ship carrying a bulk cargo of oil, such accidents can have disastrousconsequences for the environment. The inspection authority should carry out a visualexamination of the accessible parts of the ship in order to detect any serious corrosionand take whatever follow-up action may be necessary, in particular vis-à-vis theclassification societies responsible for the structural quality of ships.

(8) Expanded inspection based on mandatory verification of certain aspects of the shiptakes a considerable amount of time and organisation. The task of preparing theinspection should be facilitated, which in turn will improve its effectiveness. To thisend, the master or operator of any ship entering a Community port must notify certaininformation of an operational nature.

(9) Given the risks of major pollution caused by oil tankers and in view of the fact that thegreat majority of deficiencies leading to detention concern ships older than 15 years,the expanded inspection regime should be applied to oil tankers from the age offifteen.

(10) The growing importance of port State control in the battle against sub-standardpractices is resulting in an overall increase in inspectors' tasks. A particular effortshould therefore be made to avoid redundant inspections and to improve theinformation available to inspectors on the content of inspections performed in previousports. Consequently, the inspection report produced by the inspector on completion ofan inspection, a more detailed inspection or an expanded inspection must also statewhich parts of the ship have already been inspected. The inspector at the followingport of call will thus be able to take this information into account and, whereappropriate, decide to refrain from inspecting a part of the ship if no deficiency wasdetected during the previous inspection.

(11) The administration of the flag State of a ship inspected or the classification societyconcerned must be informed of the result of inspection in order to ensure moreeffective monitoring of the development and, where appropriate, the deterioration inthe state of the ship in order to take the necessary remedial action while there is stilltime.

(12) Accidental pollution by oil is likely to cause considerable damage to the environmentand the economy of the region concerned. It is therefore necessary to verify whetheroil tankers calling at European Union ports have appropriate cover for such risks.

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Whenever an oil tanker carrying more than 2 000 tonnes of oil in bulk is inspected, theinspector must check the presence on board of an insurance or other financialguarantee covering pollution damage, in conformity with the 1969 InternationalConvention on Civil Liability for Oil Pollution Damage, as amended by its 1992Protocol.

(13) The transparency of information relating to ships inspected and detained is a keyelement of any policy designed to deter the use of ships that fall short of the safetystandards. It is necessary in this context to include the identity of the ship's charterer inthe list of information published. The public must also be given fuller and clearerinformation on the inspections and detentions carried out in European Union ports.This concerns in particular information on the more extensive inspections performedon board ships, both by the port State authorities and by the classification societies,and an explanation of the measures taken by the port State authorities or theclassification societies concerned following a detention order under the Directive.

(14) The detection of cases where the Directive has not been properly applied or of laxpractices in certain Community ports is essential in order to avoid the risk of varyinglevels of safety and distortion of competition between ports and regions of theEuropean Union. The Commission must therefore have more detailed information,particularly on the movements of ships in ports, in order to be able to carry out adetailed examination of the conditions under which the Directive is being applied.Such information must be provided to the Commission on an annual basis to enable itto intervene more rapidly whenever anomalies are found in the application of theDirective.

(15) The provisions of Directive 95/21/EC concerning the committee procedure must beamended to take account of Council Decision 1999/468/EC of 28 June 1999 layingdown the procedures for the exercise of implementing powers conferred on theCommission.41

(16) As the measures required to implement this Directive are measures of general scopewithin the meaning of Article 2 of Council Decision 1999/468/EC, they should beadopted according to the regulatory procedure laid down in Article 5 of that Decision,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Council Directive 95/21/EC is hereby amended as follows:

1) The title is replaced by the following:

"Directive 95/21/EC of the European Parliament and of the Council of 19 June 1995on port State control of shipping".

41 OJ L 184, 17.07.1999, p. 23.

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2) Article 2 is amended as follows:

a) point 1 is amended as follows:

(i) the following subparagraph is added:

« - the International Convention on Civil Liability for Oil PollutionDamage, 1969, and the 1992 Protocol relating thereto."

(ii) the date 1 July 1999 is replaced by the date 1 July 2000;

b) in point 2, the date 1 July 1999 is replaced by the date 1 July 2000.

3) Article 5 is amended as follows:

a) paragraph (1) is replaced by the following:

"1. The total number of inspections of the ships referred to in Article 5(2), Article6 and Article 7 to be carried out annually by the competent authority of eachMember State shall correspond to at least 25% of the number of individualships which entered its ports during the past calendar year.";

b) paragraph (2) is replaced by the following:

"2. The competent authority shall ensure that an inspection in accordance withArticle 6 is carried out on any ship not subject to an expanded inspection with atarget factor greater than 50 in the Sirenac information system.

In selecting other ships for inspection, the competent authorities shalldetermine the order of priority as follows:

– absolute priority shall be given to the ships listed in Annex I, Part I,irrespective of their target factor;

– the ships listed in Annex I, Part II shall be selected in decreasing order,depending on the order of priority resulting from the value of their targetfactor."

4) Article 7 is replaced by the following:

"Article 7

Mandatory expanded inspection of certain ships

1. Member States shall ensure that the ships classed in one of the categories ofAnnex V, section A are subject to an expanded inspection in the first portvisited after a period of twelve months since the last expanded inspectioncarried out in a port of a Member State. However, these ships may be subject tothe inspection provided for in Article 6(1) and (2) in the period between twoexpanded inspections.

2. The operator or the master of a ship referred to in the preceding paragraph shallcommunicate all the information listed in Annex V, section B, to the competent

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authority of the Member State concerned at least 2 working days before theexpected time of arrival in a port of a Member State, or before leaving the portof departure if the voyage is expected to take fewer than 2 working days.

Any ship failing to communicate the above information to the competentauthority concerned shall be subject to an inspection in conformity withArticle 6 on arrival at its port of destination.

3. Annex V, section C shall contain mandatory guidelines on expandedinspection."

5) The following Article 7a is inserted:

"Article 7a

Access refusal measures concerning certain ships subject to expandedinspection

1. Member States shall ensure that ships older than 15 years classed in one of thecategories of Annex V, section A are refused access to all Community ports,except in the situations described in Article 11(6), if these ships:

– have been detained more than twice in the course of the preceding24 months in a port of a Member State, and

– fly the flag of a State listed in the table (rolling three-year average) ofabove-average detentions and delays, published in the annual report ofthe MOU.

The refusal of access shall become applicable immediately the ship has beenauthorised to leave the port where it has been the subject of a third detention.

2. For the purposes of applying paragraph (1), Member States shall comply withthe procedures laid down in Annex V, section D.

3. The Commission shall publish every six months the information relating toships that have been refused access to Community ports in application of thisArticle."

6) Article 8 is replaced by the following text:

"Article 8

Inspection report

1. On completion of an inspection, a more detailed inspection or an expandedinspection, the inspector shall draw up a report containing at least theinformation listed in Annex X, giving the results of the inspection, the parts orelements of the ship that have been inspected in the case of a more detailed oran expanded inspection, the details of any decisions taken by the inspector andof the corrective action to be taken by the master, owner or operator.

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2. A copy of the inspection report shall be provided to the ship's master, the flagState administration and the organisation responsible for ship surveys and forthe issue of class certificates or certificates issued on behalf of the flag State inaccordance with the international conventions. In the case of deficiencieswarranting the detention of a ship, the document to be given to the master inaccordance with paragraph 1 shall include information about the futurepublication of the detention order in accordance with the provisions of thisDirective."

7) In Article 9(5) the words "or recognised organisations responsible for the issue of theship's certificates shall also be notified where relevant" are replaced by the words "orrecognised organisations responsible for the issue of class certificates or certificatesissued on behalf of the flag State in accordance with the international conventionsshall also be notified where relevant."

8) In Article 10(1) the words "or refusal of access" are inserted after the words "againsta detention decision".

9) Article 14(2) is amended as follows:

a) the words "Sirenac E" are replaced by the word "Sirenac",

b) the following subparagraph is added:

"For the purposes of carrying out the inspections referred to in Articles 6 and 7,inspectors shall consult the public and private databases relating to ship inspectionaccessible through the EQUASIS information system, as soon as it becomesoperational".

10) Article 15(2) is replaced by the following:

"2. The information listed in Annex VIII, Parts I and II, and the information onchanges, suspensions and withdrawals of class referred to in Article 15(3) ofDirective 94/57/EC, shall be available in the Sirenac system. It shall be made publicthrough the EQUASIS information system, when the latter becomes operational, assoon as possible after the inspection has been completed or the detention has beenlifted."

11) Articles 17 and 18 are replaced by the following:

"Article 17

Data to monitor implementation

Member States shall provide the Commission with the information listed in Annex Xat the intervals stated in that Annex."

" Article 18

Regulatory Committee

1. The Commission shall be assisted by the Committee set up pursuant toArticle 12 of Directive 93/75/EEC.

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2. Where reference is made to this provision, the regulatory procedure laid downin Article 5 of Decision 1999/468/EC shall apply, in conformity with theprovisions of Article 8 of the Decision.

3. The period stipulated in Article 5(6) of Decision 1999/468/EC shall be threemonths."

12) Article 19(a) is replaced by the following:

"a) adapt the obligations referred to in Article 5, except the figure of 25% referredto in paragraph 1 thereof, in Articles 6, 7, 8, 15 and 17, and in the Annexes towhich these Articles refer, on the basis of the experience gained from theimplementation of this Directive and taking into account developments in theMOU;"

13) Annex I, Part II is replaced by the text in Annex I to this Directive.

14) In Annex II, the following item 35 is added:

" 35. International insurance certificate or any other financial guarantee relating tothe cover of pollution damage (for oil tankers covered by the InternationalConvention on Civil Liability for Oil Pollution Damage, 1969, and the 1992 Protocolrelating thereto)."

15) In Annex III, item 1, the words "II-8 and II-11" are replaced by the words "and II-8."

16) Annex V is replaced by the text in Annex II to this Directive.

17) Annex VI is amended as follows:

a) In item 3.1 the words "The lack of valid certificates" are replaced by the words"The lack of valid certificates and documents".

b) The following is added to item 3.2:

"15. Failure to carry out the enhanced survey programme in accordance with IMOresolution A.744(18)."

c) The following is added to item 3.6:

"5. Survey report file missing or not in conformity with Regulation 13G(3)(b) ofthe MARPOL Convention."

18) Annex VIII is replaced by the text in Annex III to this Directive.

19) Annexes IX and X are added, the text of which is in Annex IV to this Directive.

Article 2

Member States shall bring into force the laws, regulations and administrative provisionsnecessary to comply with this Directive no later than . They shall forthwith inform theCommission thereof.

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When Member States adopt those provisions, they shall contain a reference to this Directiveor be accompanied by such a reference on the occasion of their official publication. MemberStates shall determine how such reference is to be made.

Article 3

This Directive shall enter into force on the twentieth day following that of its publication intheOfficial Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the CouncilThe President The President

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ANNEX I

Annex I, Part II is replaced by the following:

II. Overall targeting factor

The following ships shall be considered as priority for inspection.

1. Ships visiting a port of a Member State for the first time or after an absence of twelvemonths or more. In applying these criteria Member States shall also take into account thoseinspections which have been carried out by members of the MOU. In the absence ofappropriate data for this purpose, Member States shall rely upon the available Sirenac dataand inspect those ships which have not been registered in the Sirenac following the entry intoforce of that database on 1 January 1993.

2. Ships not inspected by any Member State within the previous six months.

3. Ships whose statutory certificates on the ship's construction and equipment, issued inaccordance with the conventions, and the classification certificates, have been issued byorganisations which are not recognised under the terms of Council Directive 94/57/EC of22 November 1994 on common rules and standards for ship inspection and surveyorganisations and for the relevant activities of maritime administrations.

4. Ships flying the flag of a State appearing in the three-year rolling average table ofabove-average detentions and delays published in the annual report of the MOU.

5. Ships which have been permitted to leave the port of a Member State on certainconditions, such as:

(a) deficiencies to be rectified before departure;

(b) deficiencies to be rectified at the next port;

(c) deficiencies to be rectified within 14 days;

(d) deficiencies for which other conditions have been specified.

If appropriate action has been taken and all deficiencies have been rectified, this is taken intoaccount.

6. Ships for which deficiencies have been recorded during a previous inspection,according to the number of deficiencies.

7. Ships which have been detained in a previous port.

8. Ships flying the flag of a country which has not ratified all relevant internationalconventions referred to in Article 2 of this Directive.

9. Ships flying the flag of a country with a deficiency ratio above average.

10. Ships flying the flag of a country with class deficiency above average.

11. Ships above 13 years old.

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In determining the order of priority for the inspection of the ships listed above, the competentauthority shall take into account the overall target factor displayed on the Sirenac informationsystem, according to Annex I, Section 1 of the MOU. A higher target factor is indicative of ahigher priority. The overall target factor is the sum of the applicable target factor values asdefined within the framework of the MOU. Items 5, 6 and 7 shall only apply to inspectionscarried out in the last 12 months. The overall target factor shall not be less than the sum of thevalues established for items 3, 4, 8, 9, 10 and 11.

If, within three months from the introduction in the framework of the MOU of new targetfactor values, the Commission is of the view that these values are inappropriate, it maydecide, in accordance with the procedure laid down in Article 19 of Directive 95/21/EC, thatthese values shall not apply for the purposes of this Directive."

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ANNEX II

Annex V is replaced by the following:

"ANNEX V

A. CATEGORIES OF SHIPS SUBJECT TO EXPANDED INSPECTION (as referred toin Article 7(1))

1. Gas and chemical tankers older than 10 years of age, as determined on the basis ofthe date of construction indicated in the ship's safety certificates.

2. Bulk carriers older than 12 years of age, as determined on the basis of the date ofconstruction indicated in the ship's safety certificates.

3. Single hull oil tankers older than 15 years of age, as determined on the basis of thedate of construction indicated in the ship's safety certificates.

4. Passenger ships older than 15 years of age other than the passenger ships referred toin Article 2(a) and (b) of Directive 1999/35/EC.

B. INFORMATION TO BE NOTIFIED TO THE COMPETENT AUTHORITY (asreferred to in Article 7(2))

– A. name,

– B. flag,

– C. IMO identification number, if any,

– D. deadweight tonnage,

– E. date of construction of the ship,

– F. for tankers:

– F.a. configuration: single hull, single hull with SBT, double hull,

– F.b. condition of the cargo and ballast tanks: full, empty, inerted,

– F.c. volume and nature of the cargo,

– G. probable time of arrival at the port of destination or pilot station, asrequired by the competent authority,

– H. planned duration of the call,

– I. planned operations at the port of destination (loading, unloading,other),

– J. date and place of the last inspection carried out in the framework ofport State control.

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C. PROCEDURES RELATING TO EXPANDED INSPECTION OF CERTAINCATEGORIES OF SHIPS (as referred to in Article 7(3))

Subject to their practical feasibility or any constraints relating to the safety of persons, theship or the port, the following items at least must be part of an expanded inspection.Inspectors must be aware that it may jeopardise the safe execution of certain on-boardoperations, e.g. cargo handling, if tests having a direct effect thereon are required to be carriedout during such operations.

1. SHIPS IN GENERAL (Categories in section A)

– Black-out and start of emergency generator,

– Inspection of emergency lighting,

– Operation of emergency fire-pump with two fire hoses connected to the firemain-line,

– Operation of bilge pumps,

– Closing of watertight doors,

– Lowering of one lifeboat to the water,

– Test of remote emergency stop for, e.g., boilers, ventilation and fuel pumps,

– Testing of steering gear including auxiliary steering gear,

– Inspection of emergency source of power to radio installations,

– Inspection and, to the extent possible, test of engine room separator.

2. GAS AND CHEMICAL TANKERS

In addition to the items listed under section 1, the following items are to be considered as partof the expanded inspection for gas and chemical tankers:

– Cargo tank monitoring and safety devices relating to temperature, pressure andullage,

– Oxygen analysing and explosimeter devices, including their calibration. Availabilityof chemical detection equipment (bellows) with an appropriate number of suitablegas detection tubes for the specific cargo being carried,

– Cabin escape sets giving suitable respiratory and eye protection for every person onboard (if required by the products listed on the International Certificate of Fitness orCertificate of Fitness for the Carriage of Dangerous Chemicals in Bulk or LiquefiedGases in Bulk, as applicable),

– Check that the product being carried is listed in the International Certificate ofFitness or Certificate of Fitness for the Carriage of Dangerous Chemicals in Bulk orLiquefied Gases in Bulk, as applicable,

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– The fixed fire-fighting installations on deck, whether they be foam or dry chemicalor other as required by the product carried.

3. BULK CARRIERS

In addition to the items listed under section 1, the following items are to be considered as partof the expanded inspection for bulk carriers:

– Possible corrosion of deck machinery mountings,

– Possible deformation and/or corrosion of hatch covers,

– Possible cracks or local corrosion in transverse bulkheads,

– Access to cargo holds,

– Assessment of the safety of the structure on the basis of the reports of structuralsurveys, the condition evaluation reports, the thickness measurement reports and thedescriptive document referred to by IMO resolution A.744(18).

4. OIL TANKERS

In addition to the items listed under section 1, the following items are to be considered as partof an expanded inspection of oil tankers:

– Fixed deck foam system,

– Fire-fighting equipment in general,

– Inspection of fire dampers in engine room, pump room and accommodation,

– Control of pressure of inert gas and oxygen content thereof,

– Examination of the appearance of and any signs of corrosion of at least one of theballast tanks,

– Assessment of the safety of the structure on the basis of the reports of structuralsurveys, the condition evaluation reports, the thickness measurement reports and thedescriptive document referred to by IMO resolution A.744(18).

5. PASSENGER SHIPS NOT COVERED BY DIRECTIVE 1999/35/EC

In addition to the items listed under section C 1, the following items may also be consideredas part of the expanded inspection for passenger ships:

– Testing of fire detection and alarm system,

– Testing of proper closing of fire doors,

– Test of public address system,

– Fire drill where, as a minimum, all sets of firemen's outfits must be demonstrated andpart of the catering crew take part,

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– Demonstration that key crew members are acquainted with the damage control plan.

If deemed appropriate, the inspection may be continued while the ship is on passage to orfrom the port in the Member State, with the consent of the ship's master or the operator.Inspectors must not obstruct the operation of the ship, nor must they induce situations that, inthe master's judgement, could endanger the safety of the passengers, the crew and the ship.

D. MANDATORY GUIDELINES RELATING TO REFUSAL OF ACCESS TOCOMMUNITY PORTS (as referred to in Article 7a(2))

1. If the conditions described in Article 7a are met, the competent authority of theport in which the ship is detained for the third time must inform the captain andthe owner or the operator of the ship in writing of the access refusal orderserved on the ship.

The competent authority must also inform the flag State administration, theclassification society concerned, the other Member States, the EuropeanCommission, theCentre Administratif des Affaires Maritimesand the MOUSecretariat.

The access refusal order will take effect as soon as the ship has been authorisedto leave the port after remediation of the deficiencies leading to the detention.

2. The access refusal order may be lifted if the owner or the operator of the ship isable to show to the satisfaction of the competent authority of the port ofdestination that the ship can be operated without danger to the safety ofpassengers or crew, or without risk to other ships, or without presenting anunreasonable threat to the marine environment.

3. To this end, the owner or the operator must address a formal request for thelifting of the access refusal order to the Member State of the Community portof destination. This request must be accompanied by a certificate from the flagState administration or from the classification society acting on its behalf,showing that the ship fully conforms to the applicable provisions of theinternational conventions and satisfies the conditions mentioned in paragraph2. The request for the lifting of the access refusal order must also beaccompanied, where appropriate, by a certificate from the classification societywhich has the ship in class showing that the ship conforms to the classstandards stipulated by that society.

4. If the request for a lifting of the access refusal order is presented in accordancewith paragraph 3, the Member State of the port of destination must, on thebasis of the information provided by the owner or the operator of the ship,authorise the ship to proceed to the port of destination in question, for the solepurpose of verifying that the ship meets the conditions specified in paragraph2.

On arrival at the port of destination, the ship must be subjected to an expandedinspection, the cost of which will be borne by the owner or the operator. Theexpanded inspection must cover at least the relevant items of Annex V,section C, and the items that were inspected in the course of the last detentionin a port of a Member State.

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The expanded inspection referred to in the previous subparagraph must beperformed by the inspectors of the Member State of the port of destination,assisted by inspectors of a recognised organisation within the meaning ofDirective 94/57/EC, who have no commercial interest in the ship inspected.

5. If the results of the expanded inspection satisfy the Member State inaccordance with paragraph 2, the access refusal order must be lifted. Theowner or the operator of the ship must be informed thereof in writing.

The competent authority must also notify its decision in writing to the flagState administration, the classification society concerned, the other MemberStates, the European Commission, theCentre Administratif des AffairesMaritimesand the MOU Secretariat.

6. Information relating to ships that have been refused access to Community portsmust be made available in the Sirenac system and published in conformity withthe provisions of Article 15 and of Annex VIII."

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ANNEX III

Annex VIII is replaced by the following:

"ANNEX VIII

Publication of information related to detentions and inspections in ports of MemberStates

(As referred to in Article 15)

I. - Information published in accordance with Article 15(1) must include the following:

– name of the ship,

– IMO number,

– type of ship,

– tonnage (gt),

– year of construction,

– name and address of the shipowner or operator of the ship,

– in the case of ships carrying liquid or solid cargoes in bulk, the name and address ofthe charterer and the type of charter (voyage charter or time charter),

– flag State,

– the classification society or classification societies, where relevant, which has/haveissued to this ship the class certificates, if any,

– the classification society or classification societies and/or any other party whichhas/have issued to this ship certificates in accordance with the applicable conventionson behalf of the flag State, stating the certificates delivered,

– port and date of the last expanded inspection stating, where appropriate, whether adetention was ordered,

– port and date of the last special survey and the name of the organisation whichcarried out the survey,

– number of detentions during the 24 previous months,

– country and port of detention,

– date when the detention was lifted,

– duration of detention, in days,

– number of deficiencies found and the reasons for detention, in clear and explicitterms,

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– description of the measures taken by the competent authority and, where relevant, bythe classification society as a follow-up to detention,

– if the ship has been refused access to any port within the Community, the reasons forsuch measure in clear and explicit terms,

– indication, where relevant, of whether the classification society or any other privatebody that carried out the survey has a responsibility in relation to the deficiencieswhich, alone or in combination, led to detention,

– description of the measures taken in the case of a ship which has been allowed toproceed to the nearest appropriate repair yard, or which has been refused access to aCommunity port.

II – Information concerning ships inspected made public in accordance with Article 15(2)must include the following:

– name of the ship,

– IMO number,

– type of ship,

– tonnage (gt),

– year of construction,

– name and address of shipowner or operator of the ship,

– in the case of ships carrying liquid or solid cargoes in bulk, the name and address ofthe charterer and the type of charter (voyage charter or time charter),

– flag State,

– the classification society or classification societies, where relevant, which has/haveissued to this ship the class certificates, if any,

– the classification society or classification societies and/or any other party whichhas/have issued to this ship certificates in accordance with the applicable conventionson behalf of the flag State, stating the certificates delivered,

– country, port and date of inspection,

– number of deficiencies, by category of deficiency."

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ANNEX IV

The following Annexes IX and X are added:

"ANNEX IX

Inspection report drawn up in accordance with Article 8

The inspection report must contain at least the following items.

I- General

1. Competent authority that wrote the report

2. Date and place of inspection

3. Name of the ship inspected

4. Flag

5. Type of ship

6. IMO number

7. Call sign

8. Tonnage (gt)

9. Deadweight tonnage (where relevant)

10. Year of construction

11. The classification society or classification societies, where relevant, which has/haveissued to this ship the class certificates, if any

12. The classification society or classification societies and/or any other party whichhas/have issued to this ship certificates in accordance with the applicable conventionson behalf of the flag State

13. Name and address of the ship's owner or the operator

14. Name and address of the charterer and type of charter (voyage charter or timecharter) in the case of ships carrying liquid or solid cargoes in bulk

15. Final date of writing the inspection report.

II - Information relating to inspection

1. Certificates issued in application of the relevant international conventions, authorityor organisation that issued the certificate(s) in question, including the date of issueand expiry

2. Parts or elements of the ship that were inspected (in the case of more detailed orexpanded inspection)

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3. Type of inspection (inspection, more detailed inspection, expanded inspection)

4. Nature of the deficiencies

5. Measures taken.

III - Additional information in the event of detention

1. Date of the detention order

2. Date of lifting the detention order

3. Nature of the deficiencies warranting the detention order

4. Information on the last intermediate or annual survey

5. Indication, where relevant, of whether the classification society or any other privatebody that carried out the survey has a responsibility in relation to the deficiencieswhich, alone or in combination, led to detention

6. Measures taken.

ANNEX X

Data to be provided in the context of monitoring implementation

Member States must communicate the following information to the Commission inapplication of Article 17, using the model tables below.

1. Data to be provided annually

Every year Member States must provide the Commission with the following data for thepreceding year by 1 April at the latest.

1.1. Number of inspectors acting on their behalf in the framework of port State control ofshipping.

This information must be communicated to the Commission using the following model table.

Port/Area Number of full-timeinspectors

Number of part-timeinspectors42

Conversion to fulltime

Port X…….

Port Y…….

TOTAL

42 Where the inspections carried out in the context of port State control represent only part of theinspectors' work, the total number of inspectors must be converted to a number equivalent to full-timeinspectors.

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This information must be provided at national level and for each port of the Member Stateconcerned. For the purposes of this Annex, a port is taken to mean an individual port and thegeographical area covered by an inspector or team of inspectors, comprising severalindividual ports where appropriate. The same inspector may work in more than oneport/geographical area.

1.2. Total number of individual ships that entered their ports at national level.

2. Data to be provided on a quarterly basis

Member States must provide the Commission every three months with a detailed list ofmovements of individual ships that entered their ports, using the following model.

PortX

Date ofarrival

IMONo

Name Flag Type GT Year ofconstruction

Classificationsociety

Date ofdeparture

../../2… ../../2…

../../2… ../../2…

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LEGISLATIVE PROPOSAL II

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Council Directive 94/57/EC on common rules and standardsfor ship inspection and survey organisations

and for the relevant activities of maritime administrations

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EXPLANATORY MEMORANDUM

The proposed amendments to Council Directive 94/57/EC can be divided in two categories:the fine-tuning of the Community-wide recognition of classification societies, includingcontrols and sanctions, and the more stringent requirements to be met by the recognisedorganisations.

1. THE FINE -TUNING OF THE COMMUNITY -WIDE RECOGNITION OF CLASSIFICATION

SOCIETIES

The proposed amendments to Council Directive 94/57/EC will thoroughly changethe present system of Community-wide recognition of the classification societies tobe authorised to work on behalf on the Member States.

1.1 The granting of the recognition

The proposed system is for the Commission to inspect the organisation prior to thegranting of the recognition on the basis of the Commitology procedure. The need toassess the good safety and pollution prevention performance of the organisation isproposed as aconditio sine qua nonto grant the recognition. This procedure willapply both to “big” and “small” (not fulfilling the quantitative requirements of theAnnex to the Directive) organisations.

This new procedure will ensure that compliance with the provisions of the Directiveby the organisations seeking recognition as well as their good record of safety andpollution prevention performance – measured in respect of all their classed ships,irrespective of the flag they fly – are assessed in a centralised and harmonisedmanner. This will apply to the forthcoming requests for recognition, particularlylikely in view of the enlargement of the European Union.

1.2 The suspension of the recognition

In addition to the authority of Member States to suspend recognition of anorganisation working on its behalf, a similar authority shall apply at Communitylevel. It is therefore proposed to insert a new system by which the Commission, onthe basis of the Commitology procedure, may suspend the recognition of anorganisation for a limited period of time. This suspension shall apply when anorganisation whose safety and pollution prevention performance is worsening fails totake the appropriate corrective measures as requested by the Commission.

1.3 The withdrawal of the recognition

The proposed system provides for the Commission, on the basis of the Commitologyprocedure, to decide on the withdrawal of the recognition. This decision shall bebased on the failure to fulfil the provisions set out in the Directive, as well as onunsatisfactory safety and pollution prevention performance.

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1.4 A positive side effect of the proposed amendments: the simplification andenhancement of the procedure for monitoring the recognised organisations

The system of inspections to be carried out on the recognised organisations pursuantto Council Directive 94/57/EC obliges all Member States to carry out assessments onall the organisations they authorise. This is in order to verify (i) that suchorganisations effectively carry out the tasks delegated to them and (ii) that theorganisations comply with the criteria of the Annex to the Directive. While the firsttype of assessment has to remain the responsibility of each Member State, the secondone can be carried out more effectively in a harmonised and centralised manner. It istherefore proposed that the inspections of the recognised organisations to verifycompliance with the Directive be carried out by the Commission together with theMember State proposing the recognition. This new system of inspections willremove the burden at present imposed on the Member States to inspect all theorganisations working on their behalf and to draft and distribute the reports of suchinspections.

Member States will still maintain a close control on the recognised organisation. Theproposed amendments deeply involve the Committee set up under the Directive inthe decisions on the recognition of an organisation and on the possible sanctionsagainst those failing to meet the required provisions.

The constant monitoring of the recognised organisations, through the evaluation oftheir safety and pollution prevention performance and through the inspections carriedout in a centralised and harmonised manner, will ensure a better control of therecognised classification societies. As the evaluation of the performance of theseorganisations will be carried out with respect to their classed fleet, irrespective of theflag their ships fly, it will be possible to monitor and, if necessary sanction,unacceptable cases of differing performance of the recognised organisations whenworking on behalf of different flags.

It is proposed that all unnecessary duplication of provisions with the Directive onPort State Control (PSC) concerning the reporting obligations of Member States bedeleted by the present text of the Directive. However, it is considered important tomaintain the obligation for Member States to report all cases of negligent acts by therecognised organisations which they may discover when carrying out their PSCinspections.

1.5 The liability of the classification societies

The establishment of the working relationship between the Member States and theorganisations authorised to work on their behalf, and more precisely the limitation ofthe financial liability of the classification societies for minor negligence, representedthe primary reason of delay for a proper implementation of the Directive. It is feltnecessary now to harmonise this issue at Community level by laying down commonprovisions to be applied by all Member States. The proposed text is in line with whathas already been agreed by the majority of Member States and it is also acceptable tothe recognised organisations. The proposed text fixes the following principles for thelimitation of the financial liability of the classification societies:

– for a wilful act or omission or gross negligence: unlimitted liability;

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– for personal injury or death, caused by any negligent or reckless act oromission of the recognised organisation:€ 5 million;

– for loss or damage to property, caused by any negligent or reckless act oromission of the recognised organisation:€ 2.5 million.

2. THE MORE STRINGENT REQUIREMENTS TO BE MET BY THE RECOGNISEDORGANISATIONS

The classification societies members of the International Association ofClassification Societies (IACS) have adopted and implemented a so-called “Transferof Class (TOC) Agreement”, aimed at avoiding the unacceptable practice of shipschanging class in order to avoid carrying out the requested repairs (“class hopping”).It is felt necessary to make the main provisions of this Agreement compulsory atCommunity level, and therefore for all the organisations recognised on the basis ofthe Directive, whether they are members of IACS or not. The relevant provisions ofthe TOC Agreement to be transposed into the Directive are those stating that thecertificates of a ship changing class can be issued by the gaining organisation onlyafter all overdue surveys, overdue recommendations, conditions of class, operatingconditions or operating restrictions issued against the vessel by the losingclassification society have been properly dealt with. To make sure that the gainingorganisation have a full picture of the condition of the ship, on transfer the completehistory file of the vessel has to be transferred by the losing to the gaining society.

Moreover, in order to enhance transparency, the recognised organisations shalldisclose more information on their classed fleet, and on changes, suspensions andwithdrawals of class. In an attempt to tighten the net around substandard ships, therecognised organisations are required to communicate to the Port State Controlauthorities all overdue surveys, overdue recommendations, conditions of class,operating conditions or operating restrictions issued against a ship.

In order to meet the common concern that sometimes the classification societies donot exercise sufficient control on their regional offices, the proposed amendmentsforesee the obligation for the recognised organisations to establish clear and directlines of responsibility and control between their central and regional offices, as wellas the possibility to visit their regional branches during the periodic inspections ofthe organisations.

It is proposed that recognised organisations be required to define targets and methodsto measure their own safety and pollution prevention performance. They are alsorequired to establish an internal system to measure the quality of their services, bothin relation to the statutory tasks they carry out on behalf of the flag administrationsand in relation to their private activity (class certificates).

Last but not least, it is proposed that the recognised organisations no longer be ableto make use of non-exclusive surveyors to carry out statutory tasks. The exclusivesurveyors shall only be authorised to operate on board those types of ships of whichthey have an extensive knowledge.

The new requirements aim to strengthen the working procedures of the classificationsocieties in order to enhance their quality performance and, in turn, maritime safety

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and pollution prevention in general. The proper implementation of these stringentprovisions will be monitored by the Commission and the Member States in theframework of the inspections of the recognised organisations to be carried out on thebasis of the Directive.

Before concluding this chapter, it is important to mention the fact that through theamendments to Directive 94/57/EC – and particularly by the means of the provisionsstating that Member States are bound to apply the international conventions to whichthey are contracting parties – the Commission has better specified the content of the‘acquis communautaire’ to be applied by the Member States in the field of maritimesafety. This requirement is particularly important because the forthcomingenlargement of the Community includes Malta and Cyprus, whose fleets arerespectively the fourth and sixth largest in the world.

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2000/0066 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Council Directive 94/57/EC on common rules and standards for shipinspection and survey organisations

and for the relevant activities of maritime administrations

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particularArticle 80 (2) thereof,

Having regard to the proposal from the Commission43,

Having regard to the opinion of the Economic and Social Committee44,

Having regard to the opinion of the Committee of the Regions45,

Acting in accordance with the procedure laid down in Article 251 of the Treaty46,

Whereas:

(1) Safety and pollution prevention at sea may be enhanced by a proper and compulsoryimplementation by Flag States of the existing relevant conventions in force atinternational level.

(2) Council Directive 94/57/EC of 22 November 1994 on common rules and standards forship inspection and survey organisations and for the relevant activities of maritimeadministrations47, as amended by Commission Directive 97/58/EC48, established asystem of Community-wide recognition of technical organisations that, in compliancewith the international conventions, may be authorised to a various extent to inspectships and issue the relevant safety certificates on behalf of the Member States.

(3) The practical implementation of that Directive showed that some adjustments to theCommunity-wide recognition of technical organisations might have highly contributedtowards the strengthening of such a system while simplifying the monitoring andreporting obligations imposed on Member States.

43 OJ C , , p. .44 OJ C , , p. .45 OJ C , , p. .46 OJ C , , p. .47 OJ L 319, 12.12.1994, p.20.48 OJ L 274, 07.10.1997, p. 8.

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(4) Since the adoption of Directive 94/57/EC some developments have occurred in therelevant legislation at Community and international level requesting that furtheradjustments to Directive 94/57/EC be made.

(5) In particular, for the purposes of Directive 94/57/EC, it is appropriate to apply theamendments to the international conventions together with the protocols and relatedcodes of mandatory status, referred to in Article 2 (d) of Directive 94/57/EC, whichentered into force after the adoption of the Directive as well as the relevantInternational Maritime Organisation (IMO) Resolutions.

(6) With a view to promoting an effective implementation of the obligations of the flagStates laid down in the international conventions, the IMO Assembly adoptedResolution A.847 (20) on Guidelines to assist Flag States in the implementation ofIMO instruments at its twentieth session.

(7) IMO adopted the International Safety Management (ISM) Code through AssemblyResolution A.741 (18) of 4 November 1993 which was made mandatory through the newChapter IX of the International Convention for the Safety of Life at Sea (SOLAS)Convention.

(8) With a view to ensuring a uniform implementation of the ISM Code, guidelines on theimplementation of the ISM Code by administrations were adopted on 23 November 1995by IMO through Resolution A.788 (19).

(9) With a view to harmonising the statutory surveys and inspections to be carried out bythe flag administrations pursuant to the international conventions, IMO adoptedResolution A.746 (18) of 4 November 1993 on Survey Guidelines under theHarmonised System of Survey and Certification.

(10) A good record of safety and pollution prevention performance – measured in respectof all ships classed by an organisation, irrespective of the flag they fly – shall becomeessential to grant the initial recognition and to maintain such a recognition.

(11) In order to grant the initial recognition to the technical organisations wishing to beauthorised to work on behalf of the Member States, compliance with the provisions ofDirective 94/57/EC can be assessed more effectively in a harmonised and centralisedmanner by the European Commission.

(12) Similarly, the continuous ex post monitoring of the recognised organisations to assesstheir compliance with the provisions of Directive 94/57/EC can be carried out moreeffectively in a harmonised and centralised manner. Therefore it is appropriate that theCommission, together with the Member State proposing the recognition, be entrustedwith this task on behalf of the whole Community.

(13) In addition to the authority of Member States to suspend the recognition of anorganisation working on its behalf, a similar authority should apply at Communitylevel, the Commission being allowed, on the basis of the Committee procedure, tosuspend the recognition of an organisation for a limited period of time in the casewhere the safety and pollution prevention performance of the organisation isworsening and it fails to take the appropriate corrective measures as requested.

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(14) The decision on the withdrawal of the recognition of an organisation that fails to fulfilthe provisions set out in the Directive, or whose safety and pollution preventionperformance becomes unsatisfactory, has to be taken at Community level, andtherefore by the Commission, on the basis of the Committee procedure.

(15) Since Directive 94/57/EC ensures freedom to provide services in the Union, theCommunity should negotiate with those third Countries where some of the recognisedorganisations are located an equal treatment for the recognised organisations located inthe Community.

(16) The limitation of the financial liability of the organisations working on behalf of theMember States represented a major obstacle to the proper implementation of Directive94/57/EC. Its harmonisation at Community level will contribute to solve this problem.

(17) Provisions of Directive 94/57/EC concerning the Committee procedure should beamended and adapted to take account of Council Decision 1999/468/EC of 28 June1999 laying down the procedures for the exercise of implementing powers conferredon the Commission49.

(18) Since transparency and exchange of information between interested parties is afundamental tool to prevent accidents at sea, the recognised organisations shallprovide all relevant information concerning the conditions of the ships in their class tothe Port State Control authorities.

(19) In an attempt to prevent ships from changing class in order to avoid carrying outnecessary repairs, the recognised organisations shall exchange all relevant informationamong themselves concerning the conditions of ships changing class.

(20) The qualitative criteria to be met by the technical organisations in order to berecognised at Community level and to maintain such a recognition shall includeprovisions to ensure that only exclusive surveyors can carry out the statutory tasks forwhich the organisation is authorised. The organisation must have a tight control on allits personnel and offices, including the regional ones and it must establish its ownsafety and pollution prevention performance targets and indicators. The organisationmust put in place a system to measure the quality of its services. Directive 94/57/ECshould be amended accordingly.

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Council Directive 94/57/EC is hereby amended as follows:

1. Article 2 shall be amended as follows:

a) in point (b), the words “including ships registered in Euros once that register isapproved by the Council” shall be deleted;

49 OJ L 184, 17.7.1999, p. 23.

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b) in point (d), the words “in force at the date of adoption of this Directive” shallbe replaced by “in force on 1st July 2000”.

2. Article 3, paragraph 1 shall be amended as follows:

The following sentence shall be added at the end of the paragraph: “MemberStates shall act in accordance with the provisions of the Annex and theAppendix to IMO Resolution A.847 (20) on Guidelines to assist Flag States inthe implementation of IMO instruments”.

3. Article 4 shall be replaced by the following:

“1. Member States may submit to the Commission a request for a recognition fororganisations which fulfil the criteria set out in the Annex and the provisions ofArticle 14, paragraphs 2, 4 and 5. Member States shall submit to theCommission complete information concerning, and evidence of, compliancewith such requirements. The Commission shall carry out an inspection of theorganisations for which the request of recognition was received in order toverify that the organisations meet the above mentioned requirements. Adecision on the recognition shall take into account the safety and pollutionprevention performance records of the organisation, referred to in article 9. Therecognition shall be granted by the Commission in accordance with theprocedure referred to in Article 7.

2. Member States may submit to the Commission a request for a limitedrecognition of three years for organisations which meet all the criteria of theAnnex other than those set out under paragraph 2 and 3 of the section ‘General’of the Annex. The same procedure referred to in paragraph 1 will apply withthe exception that the criteria of the Annex for which compliance has to beassessed during the inspection carried out by the Commission are all thecriteria other than those set out under paragraphs 2 and 3 of the section‘General’. The effects of this recognition shall be limited to the Member Stateswhich have submitted a request for such recognition.

3. All the organisations which are granted recognition shall be closely monitoredby the committee set up under Article 7, also in view of deciding aboutextension of the limited recognition of organisations referred to in paragraph 2.A decision on the extension of such recognition shall not take into account thecriteria set out under paragraphs 2 and 3 of the section ‘General’ of the Annexwhile it shall take into account the safety and pollution prevention performancerecords of the organisation, referred to in article 9. The decision on theextension of the limited recognition shall specify under which conditions suchextension is granted, particularly in respect of the limitation of the effects ofthe recognition provided for in paragraph 2.

4. The Commission shall draw up and update a list of the organisationsrecognised in compliance with paragraphs 1, 2 and 3. The list shall bepublished in the Official Journal of the European Communities.

5. The organisations which, at the date of the entry into force of this Directive, arealready recognised on the basis of Council Directive 94/57/EC continue to berecognised. Their compliance with the new provisions laid down in this

83

Directive shall be assessed during the first inspections referred to in Article11.”

4. Article 5 shall be amended as follows:

a) In paragraph 1, the reference to “Article 3 (2) (i)” shall be replaced by “Article3 (2)” and the words “located in the Community” shall be deleted.

b) Paragraph 2 shall be deleted.

c) Paragraph 3 shall become paragraph 2, the words “reciprocal recognition” shallbe replaced by “reciprocal treatment” and the following sentence shall beadded at the end of the paragraph: “In addition, the European Community mayrequest that the third State where a recognised organisation is located grant areciprocal treatment for those recognised organisations which are located in theCommunity”.

5. Article 6 shall be amended as follows:

a) Paragraph 2 shall be replaced by the following:

“2. The working relationship shall be regulated by a formalised written and non-discriminatory agreement or equivalent legal arrangements setting out thespecific duties and functions assumed by the organisations and including atleast:

- the provisions set out in Appendix II of IMO Resolution A.739 (18) onguidelines for the authorisation of organisations acting on behalf of theadministration, as specified in the Annex, Appendixes and Attachment toIMO MSC/Circular 710 and MEPC/Circular 307 on model agreement forthe authorisation of recognised organisations acting on behalf of theadministration,

- the following provisions concerning the limitation of the financialliability:

(i) if liability arising out of any incident is finally and definitelyimposed by a court of law on the Administration for loss or damageto property or personal injury or death, which is proved in thatcourt of law to have been caused by a wilful act or omission orgross negligence of the recognised organisation, its bodies,employees, agents or others who act on behalf of the recognisedorganisation, the Administration shall be entitled toindemnification from the recognised organisation to the extent saidloss, damage, injury or death is, as decided by that court, caused bythe recognised organisation;

(ii) if liability arising out of any incident is finally and definitelyimposed by a court of law on the Administration for personal injuryor death, which is proved in that court of law to have been causedby any negligent or reckless act or omission of the recognisedorganisation, its employees, agents or others who act on behalf ofthe recognised organisation, the Administration shall be entitled to

84

indemnification from the recognised organisation, to the extent saidpersonal injury or death is, as decided by that court, caused by therecognised organisation, up to but not exceeding an amount of€ 5million;

(iii) if liability arising out of any incident is finally and definitelyimposed by a court of law on the Administration for loss or damageto property, which is proved in that court of law to have beencaused by any negligent or reckless act or omission of therecognised organisation, its employees, agents or others who act onbehalf of the recognised organisation, the Administration shall beentitled to indemnification from the recognised organisation, to theextent said loss or damage is, as decided by that court, caused bythe recognised organisation, up to but not exceeding an amount of€ 2.5 million;

(iv) neither party shall be liable to the other for any special, indirect orconsequential losses or damages resulting from or arising out ofservices performed under the agreement, including withoutlimitation loss of profit, loss of production, loss of contract, loss ofuse, business interruption or any other special, indirect orconsequential losses suffered or incurred by any party howsoevercaused;

(v) without prejudice to what is stated above, for any claim arising outof the recognised organisation’s performance or non-performanceunder this Agreement, the recognised organisation, its officers,employees, agents or others who act on behalf of the recognisedorganisation, shall be entitled to the same defences (including butnot limited to any immunity from or limitation of liability) aswould be available to the Administration’s own personnel if theyhad themselves performed the work;”

- provisions for a periodical audit by the administration or by an impartialexternal body appointed by the administration into the duties theorganisations are undertaking on its behalf, as referred to in article 11,paragraph 1,

- the possibility for random and detailed inspections of ships,

- provisions for reporting essential information about their classed fleet,changes suspensions and withdrawals of class, irrespective of the flag thevessels fly, as referred to in article 14, paragraph 3”.

b) Paragraph 4 is replaced by the following:

“4. Each Member State shall provide the Commission and the other MemberStates with precise information on the working relationship established inaccordance with this Article.”

6. Article 7 shall be replaced by the following:

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“The Commission shall be assisted by a committee composed of representatives ofthe Member States and chaired by the representative of the Commission.

Where reference is made to this Article, the regulatory procedure laid down inArticle 5 of Decision 1999/468/EC shall apply, in compliance with Article 7(3) andArticle 8 thereof.

The period provided for in Article 5(6) of Decision 1999/468/EC shall be threemonths.

This committee shall be called by the Commission at least once a year and wheneverrequired in the case of suspension of authorisation of an organisation by a MemberState or in the case of suspension of recognition by the Commission under theprovisions of Article 10. The Committee shall draw up its rules of procedure.”

7. Article 8, paragraph 1, first indent, shall be replaced by the following:

“- apply, for the purposes of this Directive, subsequent amendments to theinternational conventions, protocols, codes and resolutions related theretomentioned in Articles 2 (d) and 6 (2) , which have entered into force,”

8. Article 9 shall be replaced by the following:

“1. The recognition of organisations referred to in Article 4 which no longer fulfilthe criteria set out in the Annex or which fail to meet the safety and pollutionprevention performance records mentioned in paragraph 2 shall be withdrawn.The withdrawal of the recognition shall be decided by the Commission inaccordance with the procedure referred to in Article 7, after the organisationconcerned has been given the opportunity to submit its observations.

2. In preparing drafts for a decision relating to the matters referred to in paragraph1, the Commission shall take into account the outcome of the inspections of therecognised organisations referred to in Article 11 as well as the safety andpollution prevention performance records of the organisations, measured for allthe ships they have in class irrespective of the flag the ships fly.

Indication of the safety and pollution prevention performance records of theorganisations shall be derived from the statistics produced by the Paris Memorandumof Understanding on Port State Control and/or by similar schemes. Other indicationsmay be derived from an analysis of the casualties involving ships classed by therecognised organisations.

Reports produced by Member States on the basis of Article 12 shall also be takeninto consideration to assess the safety and pollution prevention performance recordsof the organisations.

The Committee set up under Article 7 shall determine the criteria to be followed inorder to decide, on the basis of the information referred to in this paragraph, whenthe performance of an organisation acting on behalf of a flag State can be consideredan unacceptable threat to safety and environment. Draft decisions relating to thematters referred to in paragraph 1 shall be submitted to the committee by theCommission upon its own initiative or at the request of a Member State.”

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9. Article 10 shall be amended as follows:

a) The first two sentences shall become paragraph 1 and shall be replaced by thefollowing:

“1. Notwithstanding the criteria specified in the Annex, where a MemberState considers that a recognised organisation can no longer beauthorised to carry out on its behalf the tasks specified in Article 3 it maysuspend such authorisation on the basis of the following procedure:”.

b) The following paragraphs shall be added:

“2. Whenever the Commission considers that the safety and pollutionprevention performance records of a recognised organisation worsenwithout however justifying the withdrawal of its recognition on the basisof the criteria referred to in article 9, paragraph 2, it may decide to informthe recognised organisation accordingly and request it to take appropriatemeasures to improve its safety and pollution prevention performancerecords. Should the recognised organisation fail to provide theCommission with an appropriate answer or should the Commissionconsider that the measures taken by the recognised organisation failed toimprove its safety and pollution prevention performance records, theCommission may decide to suspend the recognition of the organisationfor a period of one year in accordance with the procedure referred to inArticle 7 after the organisation concerned has been given the opportunityto submit its observations. During that period, the recognisedorganisation will not be allowed to issue or renew any certificate to shipsflying the flag of the Member States while the certificates issued orrenewed in the past by the organisation will remain valid.

3. The procedure referred to in paragraph 2 shall apply also in the casewhere the Commission has evidence that a recognised organisation failedto fulfil the provisions of article 14, paragraphs 3, 4, or 5.

4. One year after the adoption of the decision of the Commission to suspendthe recognition of an organisation, the Commission shall assess whetherthe shortcomings referred to in paragraph 2 and 3 which lead to thesuspension have been removed. In the case where such shortcomings arestill present, the recognition shall be withdrawn in accordance with theprocedure referred to in Article 7.”

10. Article 11 shall be amended as follows:

a) In paragraph 1, the following text shall be deleted: “and that such organisationsfulfil the criteria specified in the Annex. It may do so by having the recognisedorganisations directly monitored by its competent administration or, in the caseof organisations located in another Member State, by relying upon thecorresponding monitoring of such organisations by the administration ofanother Member State.”

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b) In paragraph 2, the words “Each Member State shall carry out this task on abiennial basis” shall be replaced by “Each Member State shall carry out thistask at least on a biennial basis”.

c) Paragraphs 3 and 4 shall be deleted.

d) A new paragraph 3 shall be inserted as follows:

“3. All the recognised organisations shall be inspected by the Commission,together with the Member State which submitted the relevant request forrecognition, on a regular basis and at least every three years to verify thatthey fulfil the criteria of the Annex. In selecting the organisations forinspection, the Commission shall pay particular attention to the safetyand pollution prevention performance records of the organisation, to thecasualty records and to the reports produced by Member States as perArticle 12. The inspection may include a visit to regional branches of theorganisation as well as random and detailed inspection of ships. TheCommission shall provide the Member States with a report of the resultsof the inspection.”

11. Article 12 shall be replaced by the following:

“In exercising their inspection rights and obligations as port states Member Statesshall report to the Commission and to other Member States the discovery of issue ofvalid certificates by organisations acting on behalf of a flag State to a ship whichdoes not fulfil the relevant requirements of the international conventions, or anyfailure of a ship carrying a valid class certificate and relating to items covered by thatcertificate. Only cases of ships representing a serious threat to safety andenvironment or proving a particularly negligent behaviour of the organisations shallbe reported for the purposes of this Article.”

12. Article 13 shall be deleted.

13. Articles 14, 15, 16 and 17 shall become Articles 13, 14, 15 and 16 respectively.

14. Article 14, paragraphs 3 and 4, shall be replaced by the following:

“3. The recognised organisations shall provide all relevant information to theadministration and to the Commission about their classed fleet, changes,suspensions and withdrawals of class, irrespective of the flag the vesselsfly. Information on changes, suspensions, and withdrawals of class,including information on all overdue surveys, overdue recommendations,conditions of class, operating conditions or operating restrictions issuedagainst their classed vessels - irrespective of the flag the vessels fly -shall also be communicated to the Sirenac information system for PortState Control inspections.”

“4. The recognised organisations shall not issue certificates to a ship,irrespective of its flag, declassed or changing class for safety reasonsbefore informing the competent administration of the flag State todetermine whether a full inspection is necessary.”

c) The following paragraph 5 shall be added:

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“5. In cases of transfer of class from one recognised organisation to another,the losing organisation shall inform the gaining organisation of alloverdue surveys, overdue recommendations, conditions of class,operating conditions or operating restrictions issued against the vessel.On transfer, the losing organisation shall provide the gaining organisationwith the complete history file of the vessel. The certificates of the shipcan be issued by the gaining organisation only after all overdue surveyshave been satisfactorily completed and all overdue recommendations orconditions of class previously issued against the vessel have beencompleted as specified by the losing organisation. Prior to the issuance ofthe certificates, the gaining organisation must advise the losingorganisation of the date of issuing of the certificates and confirm the date,location and action taken to satisfy each overdue survey, overduerecommendation and overdue condition of class. The recognisedorganisations shall co-operate with each other to properly implement theprovisions of this paragraph.”

15. Article 15, paragraph 3, shall be replaced by the following:

“3. The Member States shall immediately communicate to the Commission and tothe other Member States the text of all the provisions of domestic law whichthey adopt in the field governed by this Directive.”

16. The Annex to the Directive shall be amended as follows:

a) The word “should” shall be replaced by the word “must” in paragraph 2 ofSection ‘A. GENERAL’.

b) The words “would be” shall be replaced by the word “are” in the secondsentence of paragraph 3 of Section ‘A. GENERAL’.

c) The word “should” shall be replaced by the word “must” in paragraph 4 ofSection ‘A. GENERAL’.

d) The word “should” shall be replaced by the word “must” in paragraph 5 ofSection ‘A. GENERAL’. The following words shall be addedat the end of theparagraph: “or maintained in an electronic data base accessible to interestedparties”.

e) The word “should” shall be replaced by the word “must” both in the first and inthe second sentence of paragraph 6 of Section ‘A. GENERAL’.

f) The word “should” shall be replaced by the word “must” in paragraph 7 ofSection ‘A. GENERAL’.

g) The following words shall be added at the end of paragraph 4 of Section ‘B.SPECIFIC’: “and to the Commission”.

h) The following words shall be added at the end of paragraph 5 of Section ‘B.SPECIFIC’: “The organisation’s policy must refer to safety and pollutionprevention performance targets and indicators”.

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i) The following words shall be added at the end of paragraph 6 (b) of Section ‘B.SPECIFIC’: “and an internal system to measure the quality of service inrelation to these rules and regulations is put in place”.

j) The following words shall be added at the end of paragraph 6 (c) of Section ‘B.SPECIFIC’: “and an internal system to measure the quality of service inrelation to the compliance with the international conventions is put in place”.

k) Paragraph 6 (g) of Section ‘B. SPECIFIC’ shall be replaced by the following:

“(g) the requirements of the statutory work for which the organisation isauthorised are only carried out by its exclusive surveyors or by exclusivesurveyors of other recognised organisations; in all cases, the exclusivesurveyors must have an extensive knowledge of the particular type ofship on which they carry out the statutory work and of the relevantapplicable requirements;”.

l) The word “and” at the end of paragraph 6 (i) of Section ‘B. SPECIFIC’ shall bedeleted.

m) Paragraph 6 (j) of Section ‘B. SPECIFIC’ shall be replaced by the following:

“(j) a comprehensive system of planned and documented internal audits ofthe quality related activities is maintained in all locations”.

n) The following two paragraphs shall be added to paragraph 6 of Section ‘B.SPECIFIC’:

“(k) the statutory surveys and inspections required by the Harmonised Systemof Survey and Certification for which the organisation is authorised arecarried out in accordance with the provision set out in the Annex andAppendix to IMO Resolution A.746 (18) on Survey Guidelines under theHarmonised System of Survey and Certification;

(l) clear and direct lines of responsibility and control are establishedbetween the central and the regional offices of the society.”

o) Paragraph 7 (b) of Section ‘B. SPECIFIC’ shall be replaced by the following:

“(b) to carry out all inspections and surveys required by the internationalconventions for the issue of certificates, including the means of assessing– through the use of qualified professional staff and in accordance withthe provisions set out in the Annex to “IMO Resolution A.788 (19) onguidelines on implementation of the International Safety Management(ISM) Code by administrations” – the application and maintenance of thesafety management system, both shore-based and on board ships,intended to be covered in the certification.”

p) The word “should” shall be replaced by the word “must” in paragraph 9 ofSection ‘B. SPECIFIC’.

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Article 2

Member States shall bring into force the laws, regulations and administrative provisionsnecessary to comply with this Directive no later than twelve months after the date of adoptionof this Directive. They shall forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directiveor be accompanied by such a reference on the occasion of their official publication. MemberStates shall determine how such reference is to be made.

Article 3

This Directive shall enter into force on the twentieth day following that of its publication intheOfficial Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the CouncilThe President The President

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LEGISLATIVE PROPOSAL III

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

ON THE ACCELERATED PHASING -IN OF DOUBLE HULL OR EQUIVALENT DESIGN STANDARDS

FOR SINGLE HULL OIL TANKERS

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EXPLANATORY MEMORANDUM

GENERAL INTRODUCTION

1. Actual situation and problems:

The major consequences of accidental oil spills caused by oil tankers, as recentlydemonstrated with the structural failure of the ERIKA off the French coast, remainan issue of major concern for the European Commission.

In a follow-up to the pollution accidents with the oil tankers "Aegean Sea" off laCoruña in December 1992 and the "Braer" off the Shetland Islands in January 1993,the Commission issued its Communication “a common policy on safe seas”50. Thiscommunication took stock of the existing situation with regard to maritime safetyand the prevention of pollution of the marine environment. It underlined in particularthe request of the extraordinary Council on Environment and Transport of 25 January1993 to support the action in the International Maritime Organisation (IMO) on thereduction of the safety gap between new and existing ships by upgrading and/orphasing-out existing ships, built to earlier standards, after a reasonable period ofoperation. This request stressed the need of paying particular attention to oil tankersnot meeting the international standards on segregated ballast tanks and theirprotective location as laid down in the International Convention for the Prevention ofPollution from Ships, 1973 and the Protocol of 1978 related thereto (MARPOL73/78).

A first, regional decision concerning the phasing-out of single hull oil tankers wastaken in 1990 by the United States, when they promulgated the Oil Pollution Act(OPA 90) in which double hull requirements both for new and existing tank vesselshave been established. The application of the OPA 90 double hull requirement toexisting tank vessels is dependent on the age, the size in gross tons and hullconfiguration of the vessel. Basically two main categories can be distinguished.

The first category of tankers will not be allowed under OPA 90 to operate in USwaters after 1 January 2010 unless they comply with the double hull requirements.This category includes all existing single hull oil tankers above 5000 GT withoutdouble bottom or double sides. In the period from 2005 to 2010, such single hull oiltankers will not be longer allowed to operate in US waters when they reach an age of25 years, or 23 years for tankers above 30000 GT, unless they comply with thedouble hull requirements.

The second category of tankers will not be allowed under OPA 90 to operate in USwaters after 1 January 2015 unless they comply with the double hull requirements.This category includes existing single hull oil tankers above 5000 GT fitted withdouble bottom or double sides, and all existing single hull oil tankers below 5000GT. In the 10 years preceding the deadline of 2015, tankers above 5000 GT arephased out when they reach the age of 30 years, and 28 years for tankers above30000 GT. For tankers below 5000 GT, no phasing-out age limits are specified.

50 COM(93)66 final of 24.02.1993

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Faced with the unilateral decision by the USA, the IMO had to take action to alsoreduce at international level the safety gap between new and existing oil tankers,resulting in July 1993 in the entry into force of important amendments to theMARPOL 73/78 Convention. More rigorous measures concerning the design andconstruction standards for new and existing oil tankers were included in theseamendments. These design and construction standards aimed at providing a betterprotection against oil pollution in the event of collision or stranding. They requirethat oil tankers delivered on or after 6 July 1996 comply with the double hull orequivalent design requirements laid down in Regulation 13F of Annex I of theMARPOL 73/78 Convention.

In addition, the amendments to the MARPOL 73/78 Convention included also aphasing-in scheme for single hull oil tankers above 20000 tons deadweight, deliveredbefore 6 July 1996. According to Regulation 13G, such tankers have to comply withthe double hull or equivalent design standards of Regulation 13F of Annex I of theMARPOL 73/78 Convention not later than 25 years, or in some cases 30 years, aftertheir date of delivery. As a consequence, existing single hull oil tankers that do notmeet the requirements concerning segregated ballast tanks and their protectivelocation will, at international level, no longer be allowed to operate beyond 2007, orin some cases 2012, unless they comply with the double hull or equivalent designrequirements of Regulation 13F of Annex I of the MARPOL 73/78 Convention. Forexisting single hull oil tankers complying with these requirements on segregatedballast tanks and their protective location this deadline will be reached at the latest in2026.

The differences in age limits and end-dates between the OPA 90 phasing-out schemeand the one established at international level through the amendments to theMARPOL 73/78 Convention will, from 2005 onwards, have as a consequence thatsingle hull oil tankers not longer allowed to operate in US waters because of theirage, may shift their trading patterns to other regions in the world, including theEuropean Union, and continue operating until they have to comply with the doublehull requirements in accordance with the age limits provided for in the MARPOL73/78 Convention. This changing trading patterns will result into a situation wherethe oldest single hull oil tankers which under the MARPOL 73/78 Convention areallowed to continue operating, will become more dominantly present in the oil tradesto and from and within the European Union.

A study on the environmental impact of single hull oil tankers carried out in 1999 forthe Commission services addressed the effects of OPA 90 on the tanker fleetoperating outside the USA. The study's estimations show that during the period 2000to 2025 on average 15% of the crude oil tankers will be banned from US waters butstill allowed to operate under the MARPOL 73/78 Convention. It also noted thatthere will be in 2010 a distinct maximum in the number of crude oil tankers of lessthan 20000 tons DWT banned from the USA, due to the end date limit of 2010 inOPA 90. For crude oil tankers in excess of this size the maximum increase innumbers diverted to Europe will be reached in 2015. The study estimates further thatOPA 90 will have less pronounced effects for oil product tankers. For oil productstankers in the 5000 to 30000 tons deadweight category, the maximum of divertedships will be reached in 2015, whilst for the larger size category this maximum willbe reached in 2005.

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2. Proposed action at Community level:

The Commission is of the opinion that the situation described above should give riseto concern, since accident statistics reveal increasing accident rates for older ships.An appropriate Community response to this situation is considered necessary, inparticular in view of the nearing of the year 2005, the first important cut-off dateunder OPA 90 at which certain single hull oil tankers will be banned from USwaters. In order to avoid that such tankers start or continue trading to European ports,an accelerated application in the Community of the phasing-in scheme of the doublehull or equivalent design requirements of Regulation 13 F of Annex I of MARPOL73/78 is proposed. This accelerated phasing-in scheme has to be aligned with the agelimits and end-date limits provided for in OPA 90, to avoid that oil tankers bannedfrom the US under the OPA 90 regime, could shift their trading patterns to Europe.

As regards to size and hull configuration criteria, the proposal maintains thedistinction made in the MARPOL 73/78 Convention between three main categories.Category 1: so-called "pre-MARPOL" single hull oil tankers, being crude oil tankersof 20000 tons deadweight and above and oil product carriers of 30000 tonsdeadweight and above having no segregated ballast tanks in protective locations(SBT/PL). Category 2 is including "MARPOL" single hull tankers, being of the samesize as category 1, but which are equipped with SBT/PL. Category 3 contains singlehull oil tankers below the size limits of categories 1 and 2, delivered before 6 July1996, and therefore not subject to the phasing-in scheme for the double hullrequirements laid down in Regulation 13G of Annex I of MARPOL 73/78.

The Commission proposes the following approach for each of these categories.

For category 1 the proposal envisages to lower the age limits of 25 or 30 yearsprovided for in the MARPOL 73/78 Convention to one single age limit of 23 years.Since these single hull oil tankers were delivered before the date the SBT/PLrequirements of MARPOL 73/78 started to apply (1982), a final deadline in 2005 isspecified to prevent that they would continue operating beyond the proposed agelimit of 23 years. In addition, the waiver possibility provided for in RegulationI/13G(7) of Annex I of MARPOL 73/78 to accept other structural or operationalarrangements, such as hydrostatic balanced loading, as an alternative to the doublehull requirements, should not be allowed. This limitation is necessary to avoid thattankers that have reached their age limit can continue operating beyond this age limitby using other arrangements than the double hull or equivalent design configuration.

For category 2 the proposal specifies compliance with the double hull or equivalentdesign requirements not later than when they reach the age of 28 years or on 1January 2010, whichever of these dates comes first.

Finally for category 3, the Commission proposes to introduce an age limit of 25 yearswhen the tankers are not equipped with SBT/PL and 30 years when they are,combined with an end date limit of 1 January 2015 beyond which no single hull oiltanker of that category will be allowed to trade to European ports.

Since this proposal for an accelerated phasing-in scheme at Community level isaligned with the age and end-date limits in OPA 90, single hull oil tankers bannedfrom US waters will not be able to shift their trading patterns to Europe.

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By applying the same end-date limits as in OPA 90, the EU system will result into aconsiderable shorter phasing-in period, having an important, but at this stage notquantified in detail, impact on the rate at which single hull oil tankers will have to bereplaced by double hull tonnage. First estimates, based on available statistics on thecomposition of the world tanker fleet today, indicate that the impact for categories 2and 3 will be considerable.

Category 2 contains today about 2000 single hull ships (worldwide). In addition,1000 double hulled tankers are available in this size category. In the proposed EUsystem, about 70% of these 2000 ships will have to be phased out on age limit (28years) before 2010, and about 30% of them (+/- 600 ships) on deadline in 2010.

Category 3 totals today about 3000 single hull tankers. In this size category only 300double hull tankers are available today, due to the lack of any age or deadline limit inthe MARPOL 73/78 Convention for replacing the existing single hulls by doublehulls. The proposed EU system, combining age limits (25 or 30 years) with thedeadline of 2015, will have the following impact: 70% (+/- 2000 ships) will have tobe phased out before 2015 on age limit, whilst the remainder 30% (+/- 1000 ships)will have to be phased out on deadline in 2015. In view of the large number of shipsthat will have to be phased out on deadline in 2010 and 2015, the continuity of oilsupply and distribution in Europe could be temporary disturbed if there were nosufficient double hull tonnage. However it is recognised between the majorshipbuilding associations (AWES in Europe, SAJ in Japan and KSA in South Korea)that for the foreseeable future supply of merchant vessels will exceed demand. Todaythis excess capacity is estimated to be ca. 3-4 Mio cgt, which if it were used for theconstruction of double hull tankers, would represent ca. 10,42-13,89 million tonsdeadweight and be able to cope with the increased demand arising from thisproposal.

The attached proposal provides that compliance with the accelerated phasing-in ofthe double hull or equivalent design standards for single hull oil tankers should beimposed to oil tankers of 600 tons deadweight and above, flying the flag of a MemberState and as a condition for access to EU ports, irrespective of the flag the ships fly.

3. Accompanying measures:

As an accompanying measure to the phasing-in of the double hull or equivalentdesign standards for single hull oil tankers, a system of financial incentives anddisincentives is proposed to encourage the trade of double hull oil tankers to andfrom and between ports in the Community, and to discourage the trade of single hulloil tankers. This system should be based upon the principles established in CouncilRegulation (EC) No 2978/94 of 21 November 1994 on the implementation of IMOResolution A.747(18) on the application of tonnage measurement of ballast spaces insegregated ballast oil tankers51 (SBT Regulation). These principles foresee theapplication of reduced port and pilotage dues for the most environmentally friendlyoil tankers as opposed to those offering less protection against oil pollution.

However, the SBT Regulation does not take into account the higher level ofprotection against accidental oil pollution that double hull oil tankers offer as

51 OJ L 319, 12.121994, p. 1.

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compared to single hull oil tankers, and does not differentiate between double hull oiltankers and single hull oil tankers with regard to the reduction of port and pilotagedues. Moreover, in view of the proposed deadline of 2005 for single hull oil tankersnot complying with the requirements of MARPOL 73/78 on segregated ballast tanksand their protective location, there are no justified reasons to maintain any longer thedifferential financial treatment system the SBT Regulation provides between such oiltankers and tankers that do comply with the SBT/PL requirements of MARPOL73/78.

The attached proposal therefore foresees revoking the SBT Regulation and toincorporate a new financial incentive system that during the period of the acceleratedphasing-in scheme encourages the operation of oil tankers complying with the doublehull or equivalent design requirements and to discourage the operation of oil tankersnot complying yet with these requirements. This new system should be a combinedsystem providing a reduction on port and pilotage dues for oil tankers complyingwith the double hull or equivalent design standards and applying a surcharge on theport and pilotage dues for oil tankers not yet complying with these standards.

In establishing this combined incentive/disincentive system, a fair balance should beaimed at to avoid loss of revenues for the providers of port and pilotage services andto avoid that such losses would be at the detriment of the quality of these services orneed to be compensated by raising port and pilotage dues for ships unconnected withthe transport of oil and oil products. In view of the progressive increase of thenumber of double hull or equivalent design oil tankers and the decrease of thenumber of single hull oil tankers over the period of the envisaged acceleratedphasing-in scheme, the balance in revenues for port and pilotage service providershas to be achieved by making the reduction on port and pilotage dues for double hullor equivalent design oil tankers regressive with their age and the surcharge on portand pilotage dues for single hull oil tankers progressive with the ship's age.

The percentages of these reductions and surcharges laid down in the proposal shouldbe adaptable through Comitology procedure to take account of the rate at whichsingle hull oil tankers are replaced by double hull tonnage may change over theperiod of the accelerated phasing in. Finally the proposal provides that thedifferential charging will cease to be applied when the accelerated-phasing in schemefor the double hull or equivalent design standards has been fully accomplished.

A second accompanying measure provided for in the proposal is to notify to the IMOthe Community legislation on the accelerated phasing-in of the double hull orequivalent design standards for single hull oil tankers, once it is adopted. Such anotification would comply with the provisions of Article 211 of UNCLOS.Paragraph 3 of UNCLOS article 211 provides the right to coastal states for imposingparticular requirements as a condition for the entry of foreign vessels into their portsor internal waters or for a call at their off-shore terminals. It stipulates further thatdue publicity to such requirements shall be given and that they shall becommunicated to the competent international organisation and that thiscommunication should mention the States which are applying the same requirementsin the context of a co-operative arrangements.

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JUSTIFICATION FOR A REGULATION

4. a) What are the objectives of the envisaged action in relation to the obligations ofthe Community and what is the Community dimension of the problem (for instancehow many Member States are involved and what is the present solution)?

The Treaty provides for the establishment of a common transport policy and themeasures envisaged to implement such a policy include measures to improve safetyin maritime transport as foreseen in Article 80 (2).

To this end, the main objective of the envisaged action is to implement in theCommunity, in a harmonised way, an accelerated phasing-in of the double hull orequivalent design standards of the MARPOL 73/78 Convention for single hull oiltankers. A harmonised and advanced implementation at Community level of thesestandards is considered necessary to ensure that oil tankers trading to and from andbetween ports of the Member States comply as quickly as possible with the doublehull or equivalent design standards in order to reduce the risks of accidental oilpollution and its consequences in European waters.

Although not all Member States are concerned with the conditions of access for oiltankers due to their lack of coastline and ports, the Regulation will affect all MemberStates to a certain extent, since all Member States may have oil tankers flying theirflag.

5. b) Is the envisaged action solely the responsibility of the Community or is theresponsibility shared with the Member States?

It is a responsibility shared between the Community and the Member States.

6. c) What is the most efficient solution taking into account the resources of theCommunity and the Member States?

In view of the internal market dimension of maritime transport, an action atCommunity level is the only possible way to ensure that the same level of safety andmarine pollution prevention is guaranteed by oil tankers trading to and from andbetween European ports, while reducing the risks of distortion of competitionbetween ports due to the application of divergent principles for charging port andpilotage dues.

7. d) What is the concrete added value of the action envisaged by the Communityand what would be the cost of inaction?

The Community has a major interest in ensuring that the transport by sea of oil andoil products necessary for its economy is carried out in the safest and mostenvironmentally friendly way, to avoid the detrimental consequences of oil pollution.A harmonised action is necessary to avoid distortion of competition between oiltankers already complying with the latest international requirements concerningaccidental oil pollution prevention and those tankers, which do not do so yet. Thesestandards have been internationally agreed but the relevant international Conventionin which they are embedded does not ensure for their harmonised and simultaneousapplication. Their implementation in the Community can only be assured through theestablishment of an enforceable and harmonised Community framework.

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The cost of inaction would be that the rate of pollution accidents and the seriousnessof their consequences caused by the structural failure or damage of single hull oiltankers would remain unacceptably high. Furthermore, if no harmonised andaccelerated phasing-in of the double hull or equivalent design standards for these oiltankers is established within the Community, the risk of substandard and over-agedoil tanker tonnage shifting its trade patterns from areas such as the United States,where stricter safety policies are applied, to Europe cannot be deterred.

Also, inaction could entail a risk of distortion of competition between ports throughthe application of diverging criteria for charging port and pilotage dues to oil tankers,without giving due consideration to the enhanced protection against accidental oilpollution double hull or equivalent designs are offering as opposed to single hull oiltankers.

8. e) What forms of actions are available to the Community? (recommendation,financial assistance, regulation, mutual recognition)

Since the internationally agreed requirements for single hull oil tankers to complywith the double hull or equivalent design standards are providing to a large extentfreedom of interpretation and application to the flag State administration and alsoexclude a considerable number of existing oil tankers from their scope of application,they are not enforceable in a unified and harmonised way ensuring a fast replacementof all single hull oil tankers by double hull oil tankers. In addition, the possibilitiesfor waivers leading to a lack of or a divergence in implementing these internationalstandards could result in a distortion of competition. Hence it is necessary to ensure aharmonised and accelerated application of these internationally agreed standards, inthe form of a Regulation.

9. f) Is uniform legislation necessary or does a Directive setting the generalobjectives and leaving the execution to the Member States suffice?

Uniform legislation in the form of a regulation is necessary for the reasons set outabove. In accordance with the principle of proportionality, the proposed Regulationwill establish at Community level the age and dates at which single hull oil tankershave to comply with the internationally agreed double hull or equivalent designstandards, as well as a uniform approach for a differential charging system for portand pilotage dues to be applied to single and double hull oil tankers visitingEuropean ports.

The actual differential charging system for port and pilotage dues embedded inCouncil Regulation (EC) No 2978/94 of 21 November 1994 on the implementationof IMO Resolution A.747(18) on the application of tonnage measurement of ballastspaces in segregated ballast oil tankers52 cannot longer be continued since it makesno distinction between single hull and double hull oil tankers having both segregatedballast tanks. The most appropriate approach is to revoke this Regulation and replaceit by a new one, in which also the accelerated phasing-in scheme is incorporated andlinked with a new differential charging system. Acting by way of a Directive would,in addition, require for an additional period for transposing its provisions in thenational legislation of the Member States, resulting in a further delay forimplementing the accelerated phasing-in scheme.

52 OJ L 319, 12.12.1994, p.1.

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CONTENT OF THE REGULATION

10. The proposed Regulation specifies the age limits and end-dates by which single hulloil tankers have to comply with the double hull or equivalent design requirements ofRegulation 13F of Annex I of the MARPOL 73/78 Convention. The age limitsproposed are either lower than the ones specified in Regulation 13G of Annex I ofMARPOL 73/78 or apply to categories of tankers which because of their size are notcovered by that Regulation. The end-date limits specified aim at avoiding that singlehull oil tankers can continue or start trading to European ports after the end-datelimits beyond which they are not longer allowed to operate in the waters fallingunder the jurisdiction of the United Sates. Compliance of these requirements will beimposed as a condition of access to ports of the Member States for all oil tankers of600 tons deadweight and above, irrespective of the flag they fly. Further, all oiltankers of that size category, flying the flag of a Member State will have to complywith the accelerated phasing-in scheme of the double hull or equivalent designstandards.

11. In addition, and as a complementary measure, the proposal foresees the replacementof the actual differential charging system for port and pilotage dues as laid down inCouncil Regulation (EC) No 2978/94. The existing system has to be abolished, sinceit does not provide for a differentiation in the charging of port and pilotage duesbetween single hull and double hull oil tankers both equipped with segregated ballasttanks. Moreover, the accelerated phasing-in system will lead to the disappearance ofsingle hull oil tankers without segregated ballast tanks as soon as in 2005, andtherefore there will be no reasons to prolong the actual system beyond that date. Thenew financial system for differential charging of port and pilotage dues proposedforesees a reduction of these dues for double hull oil tankers, but the reductionshould be regressive with the ship's age. For single hull oil tankers a surcharge on thedues is applied, progressive with ship's age. The proposal specifies that thisdifferential charging system should cease to be applied, once the phasing-in of thedouble hull or equivalent design standards for single hull oil tankers is fullyaccomplished.

12. Finally, the proposed Regulation provides for its notification to IMO, once it hasbeen adopted. The purpose of this notification is to inform the international maritimecommunity about the new rules of play in the Community for trading with oil tankersto and from and between ports of the Member States.

13. The proposal provides also for a mandate to the Commission, subject to Comitology,for amending the Regulation to take account of amendments to the relevantinternational instruments, as well as for adjusting the percentages of the reductionsand surcharges in the differential charging system, to take account of possiblefluctuations in the rate at which the replacement of single hull tonnage by doubletonnage is taking place over the phasing-in period.

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SPECIAL CONSIDERATIONS

Article 1

The purpose of the Regulation: to raise the safety and pollution prevention standards for oiltankers operating to and from and between ports of the Member States to reduce the risks ofaccidental oil pollution due to collision or grounding.

The way to achieve this objective is through accelerating the timing by which single hull oiltankers have to comply with the double hull or equivalent design standards of Regulation 13Fof Annex I of MARPOL 73/78. As an accompanying measure the Regulation also providesfore a differential charging system for port and pilotage dues between single hull and doublehull or equivalent design tankers.

Article 2

This Article defines the scope of application of the Regulation. It covers all oil tankers of 600tons deadweight and above, irrespective of the flag they fly, when calling at Community portsand all oil tankers of that size flying the flag of a Member State.

Article 3

This Article contains the definitions of the key concepts of the Regulation, which are mainlyderived from the relevant definitions in the International Convention for the Prevention ofPollution from Ships (MARPOL 73/78).

Article 4

Article 4 lays down the age limits and date limits by which single hull oil tankers have tocomply with the double hull or equivalent design standards of the MARPOL 73/78Convention. Depending on the size and configuration of the tankers, the age limits varybetween 23 to 30 years and the end-date limits between 2005 and 2015. In addition, paragraph2 of this article specifies that for the purpose of complying with this article, the waiverpossibility provided for in Regulation 13G(7) of Annex I of MARPOL 73/78 to accept otherstructural or operational arrangements as alternatives for compliance with the double hull orequivalent design requirements of Regulation 13F of Annex I of MARPOL 73/78, shall not beaccepted.

Article 5

This article establishes the differential charging system for port and pilotage dues betweensingle hull and double hull or equivalent design tankers, based upon the application of areduction of these dues for double hull or equivalent design tankers, which is regressive withthe age of the ship. For single hull oil tankers, not yet complying with the double hull orequivalent design standards, a surcharge on the port and pilotage dues has to be applied whichis progressive with the ship's age. Where charging systems for port and pilotage dues arebased upon another criterion than deadweight, they have to ensure that at least the samepercentage for the reductions and surcharges is applied as in the system based upondeadweight. Finally, the article specifies that the differential charging system shall cease to beapplied once the accelerated phasing-in of the double hull or equivalent design standards hasbeen fully accomplished.

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Article 6

Article 6 provides for the notification to IMO of the adoption of this Regulation. Thisnotification aims at providing the international maritime community with information on thenew rules of play for trading with oil tankers to and from and between ports of theCommunity.

The United Nations Convention on the Law of the Sea (UNCLOS) provides in its Article 211,concerning pollution from vessels, the right to coastal states to impose particular requirementsas a condition for the entry of foreign vessels into their ports or internal waters or for a call attheir off-shore terminals. It stipulates further that due publicity to such requirements shall begiven and that they shall be communicated to the competent international organisation andthat this communication should mention the States which are applying the same requirementsin the context of a co-operative arrangements. The notification to the IMO of the adoption ofthis Regulation aims at meeting this provision of UNCLOS.

Article 7

Article 7 contains provisions on monitoring and reporting on the implementation of theRegulation. It provides that Member States regularly verify that port and pilotage authoritiescorrectly apply the differential charging system for port and pilotage dues as provided for inArticle 5. Member States are required to report annually to the Commission on the results oftheir verification, and this within 4 months after each year upon which is reported.

Article 8

The establishment of a regulatory Committee is incorporated in this article, including also areference to the procedures of article 5 of Council Decision 1999/468/EC53, in accordancewith which it has to act. The article also fixes the period for the Council to act in accordancewith the provisions of paragraph 6 of that article to 3 months.

Article 9

This Article provides the right for the Commission to amend the Regulation and its Annex, inaccordance with the procedure laid down in Article 8, to update the references to the relevantRegulations of MARPOL 73/78 in line with any subsequent amendments that may be adoptedto these Regulations.

It also provides under the same procedure for the adjustment of the percentage of reductionsand surcharges on port and pilotage dues to be applied, to take into account variations in therate at which the replacement of single hull oil tankers by double hull or equivalent designtankers will take place during the phasing-in period.

53 Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powersconferred on the Commission, OJ L 184 , 17.07.1999, p. 23.

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Article 10

In view of the new differential charging system for port and pilotage dues established inArticle 5, the existing differential charging system laid down in Council Regulation (EC) No2978/94 has to be abolished. The existing system provides for differential port and pilotagedues between oil tankers equipped with segregated ballast tanks in protective locations(SBT/PL) and those without. However, by using only the SBT/PL criterion, it does notprovide for any differentiation between single hull and double hull or equivalent designtankers.

Articles 11 and 12

No comments

Annex

The annex to the regulation specifies the percentages of the reductions and surcharges on portand pilotage dues to be applied in function of the ship's age.

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2000/0067 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the accelerated phasing-in of double hull or equivalent design requirementsfor single hull oil tankers

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particularArticle 80 (2) thereof,

Having regard to the proposal from the Commission54,

Having regard to the opinion of the Economic and Social Committee55,

Having regard to the opinion of the Committee of the Regions56,

Acting in accordance with the procedure laid down in Article 251 of the Treaty57,

Whereas:

(1) within the framework of the common transport policy further measures must be takento enhance safety and prevent pollution in maritime transport ;

(2) the Community is seriously concerned by the shipping accidents involving oil tankersand the associated pollution of its coast-lines and harm to its fauna and flora and othermaritime resources;

(3) the Commission underlined in its Communication “a common policy on safe seas”58

the request of the extraordinary Council on Environment and Transport of 25 January1993 to support the action in the International Maritime Organisation (IMO) on thereduction of the safety gap between new and existing ships by upgrading and/orphasing-out existing ships, built to earlier standards, after a reasonable period ofoperation, paying particular attention to oil tankers not meeting the amendments of theInternational Convention for the Prevention of Pollution from Ships, 1973 and theProtocol of 1978 related thereto (MARPOL 73/78) which entered into force in 1982;

(4) the European Parliament in its Resolution on a common policy on safe seas59

welcomed the Commission Communication and called in particular for action to betaken to improve tanker safety standards;

54 OJ C […], […], p. […].55 OJ C […], […], p. […].56 OJ C […], […], p. […].57 OJ C […], […], p. […].58 COM(93)66 final of 24.02.1993.59 OJ C 91, 28.031994, p.301.

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(5) the Council, by its Resolution of 8 June 199360, fully supported the objectives of theCommission Communication;

(6) at international level, the International Maritime Organisation has established in theInternational Convention for the Prevention of Pollution from Ships, 1973 and theProtocol of 1978 related thereto (MARPOL 73/78) internationally agreed pollutionprevention rules affecting the design and operation of oil tankers;

(7) important amendments to the MARPOL 73/78 Convention containing more rigorousmeasures concerning the design and construction standards for oil tankers have beenadopted by the IMO on 6 March 1992, which entered into force on 6 July 1993. Thesemeasures impose double hull or equivalent design requirements for oil tankersdelivered on or after 6 July 1996 aimed at preventing oil pollution in the event ofcollision or stranding. Within these amendments a phasing-in scheme for single hulloil tankers delivered before that date took effect from 6 July 1995 onwards requiringsuch tankers to comply with the double hull or equivalent design standards not laterthan 25 years and in some cases 30 years after their date of delivery. As a consequenceof these measures existing single hull oil tankers not complying with the requirementsof MARPOL 73/78 concerning segregated ballast tanks and their protective locationwill no longer, at international level, be allowed to operate beyond 2007, and in somecase 2012, unless they comply with the double hull or equivalent design requirementsof Regulation 13F of Annex I of MARPOL 73/78. For existing single hull oil tankersthat do comply with the requirements of MARPOL 73/78 on segregated ballast tanksand their protective location this deadline will be reached at the latest in 2026;

(8) prior to the adoption of these amendments to MARPOL 73/78, the United Statesalready adopted in 1990 the Oil Pollution Act establishing double hull requirementsboth for new and existing tank vessels. These requirements provide that after 1January 2010 single hull oil tankers without double bottom or double sides will not beallowed to operate to and from US ports unless they comply with the double hullrequirements. In addition, in the period preceding this final deadline such single hulloil tankers will not be longer allowed to operate to and from US ports from 2005onwards when they reach an age of 25 years, and in some cases 23 years, unless theycomply with the double hull requirements. For single hull oil tankers fitted withdouble bottom or double sides this final deadline is fixed on 1 January 2015 and theship's age limit in the preceding period between 2005 and 2015 is 30 years and insome cases 28 years;

(9) it can be expected that the differences between the international regime and the oneestablished by the United States concerning age limits and end-date limits for theapplication of the double hull requirements to existing single hull oil tankers willresult, from 2005 onwards, that single hull oil tankers not longer allowed to operate toand from US ports because of their age, and particularly after the end-date limits of2010 and 2015, will shift their trading patterns to other regions in the world, includingthe European Union, and continue operating until they have to comply with the doublehull requirements in accordance with the age limits provided for in the MARPOL73/78 Convention;

60 OJ C 271, 07.10.1993, p.1.

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(10) comparison of tanker age and accident statistics show increasing accident rates forolder ships. It has been internationally agreed that the adoption of the 1992amendments to MARPOL 73/78 requiring the application of the double hull orequivalent design standards to existing single hull oil tankers when they reach acertain age will provide these tankers with a higher degree of protection againstaccidental oil pollution in the event of collision or stranding;

(11) it is in the interest of the Community to adopt measures to avoid that single hull oiltankers that due to their advanced age, or after the end-date limits, are no longerallowed under the Oil Pollution Act 1990 to operate to and from US ports, will start orcontinue operating to and from European ports and thereby maintain or increase therisk of accidental oil pollution in European waters;

(12) these measures should be based upon the principles of the MARPOL 73/78Convention that existing single hull oil tankers have to comply with the double hull orequivalent design requirements not later than when they reach a certain age. The agelimits in these measures should be aligned with those of the Oil Pollution Act 1990and for that purpose an accelerated phasing in of the double hull or equivalent designstandards of MARPOL 73/78 should be established for existing single hull oil tankersby lowering the age limit and specifying end-date limits in line with those of the OilPollution Act 1990, beyond which these ships have to comply with these standards asa condition for entering into a port or the internal waters of a Member State of theCommunity;

(13) the requirements of Regulation 13G of Annex I of MARPOL 73/78 for existing singlehull oil tankers to comply with the double hull or equivalent design standards applyonly to crude oil tankers of 20000 tons deadweight and above and to product carriersof 30000 tons deadweight and above. The double hull or equivalent designrequirements of Regulation 13F of Annex I of MARPOL 73/78 apply to oil tankers of600 tons deadweight and above delivered after 6 July 1996. This difference in sizelimits in the scope leaves the category of single hull crude oil tankers delivered before6 July 1996 and having a deadweight between 600 and 20000 tons deadweight as wellas product carriers delivered before 6 July 1996 with a deadweight between 600 and30000 tons unaffected. In view of the importance of this lower tonnage category of oiltankers for the intra-Community trade similar measures should be adopted to ensurethat these tankers will also have to comply with the double hull or equivalent designstandards of MARPOL 73/78. For that purpose a phasing-in of the double hull orequivalent design standards of MARPOL 73/78 should be established for this categoryof single hull oil tankers as a condition for entering into a port or the internal waters ofa Member State of the Community;

(14) the European Parliament, in its Resolution on the oil slick off the French coast adoptedon 20 January 200061, welcomed any efforts by the Commission to bring forward thedate by which oil tankers will all be obliged to have a double-hull construction;

(15) the accelerated phasing in of the double hull or equivalent design requirements forsingle hull oil tankers should be accompanied by complementary measures aimed atencouraging the trading with double hull or equivalent design oil tankers in advance ofthe accelerated phasing-in scheme. These complementary measures should consist ofproviding financial incentives for double hull or equivalent design oil tankers and

61 OJ C […], […], p. […].

106

disincentives for single hull oil tankers operating to or from ports of the MemberStates in the Community;

(16) these complementary measures should be based upon the principles established inCouncil Regulation (EC) No 2978/94 of 21 November 1994 on the implementation ofIMO Resolution A.747(18) on the application of tonnage measurement of ballastspaces in segregated ballast oil tankers62. These principles foresee the application ofreduced port and pilotage dues for the most environmentally friendly oil tankers asopposed to those offering less protection against oil pollution;

(17) Council Regulation (EC) No 2978/94 does not take into account the higher level ofprotection against accidental oil pollution offered by double hull or equivalent designoil tankers as compared to single hull oil tankers. Therefore the Regulation does notdifferentiate between double hull oil tankers and single hull oil tankers fitted withsegregated ballast tanks with regard to the reduction of port and pilotage dues;

(18) in view of the nearing deadline for single hull oil tankers not complying with therequirements of MARPOL 73/78 on segregated ballast tanks and their protectivelocation there are no reasons to maintain any longer the differential charging systemCouncil Regulation (EC) No 2978/94 provides between such oil tankers and tankersthat comply with the requirements of MARPOL 73/78 on segregated ballast tanks andtheir protective location;

(19) in view of aiming at promoting the trading to European ports of double hull orequivalent design oil tankers, the financial incentive system of Council Regulation(EC) No 2978/94 should be replaced by a system that during the period of theaccelerated phasing-in scheme encourages the operation of oil tankers complying withthe double hull or equivalent design requirements and discourages the operation of oiltankers not complying yet with these requirements. For that purpose CouncilRegulation (EC) No 2978/94 should be repealed;

(20) the financial incentives for oil tankers complying with the double hull or equivalentdesign standards and financial disincentives for oil tankers not yet complying withthese standards should be based upon a combined system providing a reduction of portand pilotage dues for oil tankers complying with the double hull or equivalent designstandards and applying a surcharge on the port and pilotage dues for oil tankers not yetcomplying with these standards;

(21) Port and pilotage dues should be proportionate with the services rendered and becalculated in a non-discriminatory manner.

(22) this combined system of reductions and surcharges on port and pilotage dues shouldbe balanced to avoid loss of revenues for the providers of port and pilotage servicesand to avoid that such losses would be at the detriment of the quality of these servicesor need to be compensated by raising port and pilotage dues for ships unconnectedwith the transport of oil and oil products;

(23) in view of the progressive increase of the number of double hull or equivalent designoil tankers and the decrease of the number of single hull oil tankers over the period ofthe accelerated phasing in scheme the balance in revenues for port and pilotage service

62 OJ L 319, 12.12.1994, p.1.

107

providers should be achieved by making the reduction on port and pilotage dues fordouble hull or equivalent design oil tankers regressive with their age and the surchargeon port and pilotage dues for single hull oil tankers progressive with the ship's age.This differential charging system should cease to be applied when the replacement ofsingle hull oil tankers by double hull or equivalent design oil tankers has been fullyaccomplished;

(24) since the measures necessary for the implementation of this Regulation are measuresof general scope within the meaning of Article 2 of Council Decision 1999/468/EC of28 June 1999 laying down the procedures for the exercise of implementing powersconferred on the Commission63, they should be adopted by use of the regulatoryprocedure provided for in Article 5 of that Decision;

(25) certain provisions of this Regulation containing references to the regulations of theMARPOL 73/78 Convention may be amended by the Commission, assisted by theCommittee, to bring them in line with amendments to these regulations adopted orentered into force. Also the percentages of the reductions and surcharges on port andpilotage dues in the Annex may be amended by that Committee to ensure that therevenues for port and pilotage service providers are kept in balance in view of the paceand extent at which single hull oil tankers are replaced by double hull or equivalentdesign oil tankers during the phasing-in period;

HAVE ADOPTED THIS REGULATION:

Article 1

Purpose

The purpose of this Regulation is to establish:

– an accelerated phasing-in scheme for the application of the double hull or equivalentdesign requirements of the MARPOL 73/78 Convention to single hull oil tankers, and

– a system of financial incentives and disincentives, providing for a reduction on port andpilotage dues for oil tankers complying with the double hull or equivalent design standardsand a surcharge on these dues for oil tankers not yet complying with these standards.

Article 2

Scope

This Regulation shall apply to all oil tankers of 600 tons deadweight and above,

– when entering into a port or the internal waters of a Member State, irrespective of theirflag, or

– flying the flag of a Member State.

63 O.J. L 184, 17.07.99, p.23

108

Article 3

Definitions

For the purpose of this Regulation,

(1) “MARPOL 73/78” shall mean the International Convention for the Prevention ofPollution from Ships, 1973, as modified by the Protocol of 1978 relating theretotogether with the amendments thereto, in force;

(2) “oil tanker” shall mean an oil tanker as defined in Regulation 1 (4) of Annex I ofMARPOL 73/78;

(3) “deadweight (DW)” shall mean deadweight as defined in Regulation 1 (22) of Annex Iof MARPOL 73/78;

(4) “new oil tanker” shall mean a new oil tanker as defined in Regulation 1 (26) of AnnexI of MARPOL 73/78;

(5) “crude oil tanker” shall mean a crude oil tanker as defined in Regulation 1 (29) ofAnnex I of MARPOL 73/78;

(6) “product carrier” shall mean a product carrier as defined in Regulation 1 (30) ofAnnex I of MARPOL 73/78;

(7) “single hull oil tanker” shall mean an oil tanker not meeting the double hull orequivalent design requirements of Regulation 13F of Annex I of MARPOL 73/78;

(8) “double hull oil tanker” shall mean an oil tanker meeting the double hull or equivalentdesign requirements of Regulation 13F of Annex I of MARPOL 73/78;

(9) “age” shall mean the age of a ship, expressed in number of years after the date of itsdelivery;

(10) “port and harbour authority” shall mean a public or private person which charges feesto ships for providing facilities and services to shipping;

(11) “pilotage authority” shall mean a public or private person entitled to render pilotageservices to shipping;

Article 4

Compliance with the double hull or equivalent design requirements by single hull oil tankers

1. Member States shall not allow single hull oil tankers to enter into their ports orinternal waters after the earliest of the dates specified hereafter, unless such tankerscomply not later than the earliest of those dates with the double hull or equivalentdesign requirements of Regulation 13F of Annex I of MARPOL 73/78:

(1) for crude oil tankers of 20000 tons deadweight and above and product carriersof 30000 tons deadweight and above not meeting the requirements for a newoil tanker in Regulations 13, 13B, 13E and 18(4) of Annex I of MARPOL73/78: when they reach the age of 23 years or 1 June 2005.

109

(2) for crude oil tankers of 20000 tons deadweight and above and product carriersof 30000 tons deadweight and above meeting the requirements for a new oiltanker in Regulations 13, 13B, 13E and 18(4) of Annex I of MARPOL 73/78:when they reach the age of 28 years or 1 January 2010.

(3) for crude oil tankers of 600 tons deadweight and above but less than 20000tons and product carriers of 600 tons deadweight and above but less than30000 tons not meeting the requirements for a new oil tanker in Regulations13, 13B, 13E and 18(4) of Annex I of MARPOL 73/78: when they reach theage of 25 years or 1 January 2015.

(4) for crude oil tankers of 600 tons deadweight and above but less than 20000tons and product carriers of 600 tons deadweight and above but less than30000 tons meeting the requirements for a new oil tanker in Regulations 13,13B, 13E and 18(4) of Annex I of MARPOL 73/78:when they reach the age of 30 years or 1 January 2015.

2. Other structural or operational arrangements such as hydrostatically balanced loadingas referred to in Regulation 13G(7) of Annex I of MARPOL 73/78 shall not beaccepted as alternatives for compliance with the requirements of paragraph 1.

Article 5

Differential charging of port and pilotage duesfor double hull and single hull oil tankers

1. Member States shall ensure that port and harbour authorities and pilotage authorities,when charging port and pilotage dues to oil tankers, apply a differential chargingsystem to the effect that:

– the fees for double hull oil tankers are at least reduced with the percentagesmentioned in the Annex in comparison with the fees applied to single hull oiltankers of the same deadweight having an age of less than 5 years, and

– the fees for single hull oil tankers are at least increased with the percentagesmentioned in the Annex in comparison with the fees applied to single hull oiltankers of the same deadweight having an age of less than 5 years.

2. Where the fees for port and pilotage dues are charged on another basis thandeadweight, Member States shall ensure that the charging system applied by port andharbour authorities and pilotage authorities provides at least the same percentages ofreduction in fees for double hull oil tankers and increase in fees for single hull oiltankers as mentioned in paragraph 1.

3. The differential charging system for port and pilotage dues shall cease to apply onthe latest of the dates referred to in Article 4.

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Article 6

Notification to the IMO

The Presidency of the Council and the Commission shall inform the International MaritimeOrganisation of the adoption of this Regulation, whereby reference shall be made toarticle 211, paragraph 3 of the United Nations Convention on the Law of the Sea.

Article 7

Monitoring and reporting

1. Member States shall regularly verify that port and harbour authorities and pilotageauthorities apply correctly the differential charging system specified in article 5.

2. The Member States shall send to the Commission annually a report on the results ofthis verification, including breaches committed by their port and harbour authoritiesand pilotage authorities. The report shall be provided at the latest by 30 April of theyear following the year upon which it reports.

Article 8

Committee procedure

1. The Commission shall be assisted by the committee instituted by Article 12,paragraph 1, of Council Directive 93/75/EEC64.

2. Where reference is made to this paragraph, the regulatory procedure laid down inArticle 5 of Council Decision 1999/468/EC shall apply, in compliance withArticle 7(3) and Article 8 thereof.

3. The period provided for in Article 5(6) of Decision 1999/468/EC shall be threemonths.

Article 9

Amendment procedure

1. The references in the Articles to the regulations of Annex I of MARPOL 73/78 maybe amended, in accordance with the procedure laid down in Article 8, in order tobring them in line with amendments to these regulations adopted by the IMO.

2. The percentages for the reductions and surcharges of the differential charging systemfor port and pilotage dues in the Annex may be amended in accordance with theprocedure laid down in Article 8, to take account of the pace and extent of thereplacement of single hull oil tankers by double hull oil tankers during the phasing inperiod.

64 Council Directive concerning minimum requirements for vessels bound for or leaving Community portsand carrying dangerous or polluting goods, OJ L 247, 5.10.1993, p. 19.

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Article 10

Repeal of Council Regulation (EC) No 2978/94

Council Regulation (EC) No 2978/94 of 21 November 1994 on the implementation of IMOResolution A.747(18) on the application of tonnage measurement of ballast spaces insegregated ballast oil tankers65 is repealed as from [12 months after the entry into force of thisRegulation].

Article 11

Implementation

1. Member States shall, in due time, but before the date of application referred to inArticle 12, adopt such laws, regulations or administrative provisions as may benecessary for the implementation of this Regulation.

2. When Member States adopt measures as referred to in paragraph 1, they shall containa reference to this Regulation or shall be accompanied by such reference on theoccasion of their official publication. The methods of making such reference shall belaid down by Member States.

3. The Member States shall immediately communicate to the Commission allprovisions of domestic law which they adopt in the field governed by thisRegulation. The Commission shall inform the other Member States thereof.

Article 12

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication inthe Official Journal of the European Communities. It shall be applicable on [12 months afterits entry into force date].

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament For the CouncilThe President The President

65 OJ L 319, 12.12.1994, p. 1.

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ANNEX

Differential charging of port and pilotage duesfor double hull or equivalent design oil tankers and single hull oil tankers

Minimum percentages of reductions and surchargesto be applied as referred to in Article 5.

Ship’s age 0-5 5-10 10-15 15-20 20-25 >25

Reduction for doublehull or equivalentdesign oil tankers

- 25% - 20% - 15% - 10% - 5% None

Surcharge for singlehull oil tankers

none + 10% + 15% + 20% + 25% + 30%

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FINANCIAL STATEMENT

1. TITLE OF OPERATION

Proposal for a Regulation of the European Parliament and of the Council on theaccelerated phasing-in of double hull or equivalent design standards for single hulloil tankers

2. BUDGET HEADING (S) INVOLVED

Part A (see § 10)Part B (see § 7) - budget-heading B2-702 : Preparation, evaluation and promotion oftransport safety

3. LEGAL BASIS

Safety in maritime transport: Article 80(2) of the Treaty

4. DESCRIPTION OF OPERATION

4.1 General objective

Protecting the marine environment from accidental oil pollution caused by oil tankersthrough an accelerated phasing-in of double hull or equivalent design standards forsingle hull oil tankers.

4.2 Period covered and arrangements for renewal

Indefinite

5. CLASSIFICATION OF EXPENDITURE OR REVENUE

5.1 Non-compulsory expenditure

5.2 differentiated appropriations

5.3 Type of revenue involved:none

6. TYPE OF EXPENDITURE OR REVENUE

Operational and administrative expenses for the follow-up and monitoring of theimplementation of the Regulation.

The operational expenses are to cover the holding once a year of meetings withexperts of the industry involved and the carrying out every third year of anassessment study on the impact, implementation and effectiveness of the measure.The appropriations for these operational expenses are detailed in table 7.2. and willbe covered by budget heading B2-702

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The administrative expenses are to cover the holding once a year of a meeting of theregulatory Committee to be established under the proposed Community measure.Details of the associated costs are specified in table 10.3.

7. FINANCIAL IMPACT

7.1 Method of calculating total cost of operation (relation between individual andtotal costs)

The total cost of operation is calculated by totalling the individual costs on a yearlybasis, starting with the year n at which the proposed Community measure will haveentered into force (see table 7.2).

These individual costs consist of a yearly returning amount of 5.000€ for organisingonce a year a 1 day meeting with experts of the industry involved. In addition, everythird year, the Commission services intend to contract an assessment study on theimpact, implementation and effectiveness of the measures adopted. This regularassessment of the measure over the entire phasing-in period is necessary for theCommission to be able to propose under Comitology procedure eventually necessaryamendments to the accompanying incentive/disincentive system for the accelerationof the phasing-in of double hull or equivalent design standards in the Community.The cost for such an assessment study is estimated to be 100.000€.

It is envisaged that the commitment and payment appropriations for each of theindividual costs will be made in the same year (see table 7.3)

7.2 Operational expenditure for studies, experts etc. included in Part B of thebudget

Commitment appropriations EUR million (at current prices)

year n n+1 n+2 n+3 n+4 n+5andsubs.years

Total

– Studies 0,1 0,1 0,2

– Meetings of experts66 0,005 0,005 0,005 0,005 0,005 0,025

– Information andpublications

Total 0,005 0,005 0,105 0,005 0,105 0,225

66 Costs satisfying the criteria in the Commission communication of 22.4.1992 (SEC(92) 769).

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7.3 Schedule of commitment and payment appropriations

EUR million

year n n+1 n+2 n+3 n+4 n+5andsubs.years

Total

Commitment appropriations 0,005 0,005 0,105 0,005 0,105 0,225

Payment appropriations

year nn+1n+2n+3n+4n+5and subs. years

0,0050,005

0,1050,005

0,105

0,0050,0050,1050,0050,105

Total 0,005 0,005 0,105 0,005 0,105 0,225

8. FRAUD PREVENTION MEASURES

– Control of adherence to the procedures for inviting Member States’ experts tothe Regulatory Committee meetings.

9. ELEMENTS OF COST-EFFECTIVENESS ANALYSIS

9.1 Specific and quantified objectives; target population

– Specific objectives: links with general objective

Establishment of an accelerated phasing-in scheme for single hull oil tankers tocomply with the double hull or equivalent design standards of the InternationalConvention for the Prevention of Pollution from Ships (MARPOL 73/78).

– Target population: distinguish for any individual objectives; indicate the end-beneficiaries of the Community's financial contribution and the intermediariesinvolved.

No financial contribution is provided for in this proposal.

The differential charging system proposed for port and pilotage dues isbalanced by compensating the reduction in dues awarded to double hull tankersby surcharges on dues to be paid by single hull oil tankers.

9.2 Grounds for the operation

– Need for Community financial aid, with particular regard for the principle ofsubsidiarity.

No Community financial aid is foreseen in this proposal.

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– Choice of ways and means

* advantages over possible alternatives (comparative advantages)

The advantage of establishing at Community level an accelerated phasing-in ofthe double hull or equivalent design standards to single hull oil tankers,compared to individual action by Member States will be that distortion ofcompetition and divergence in safety levels can be avoided. It will also ensurethat all oil tankers trading to the European Union will have to comply with onecommon set of standards and procedures to be respected in all ports establishedin the Community, providing more clarity and ensuring a uniform treatment.

* explanatory reference to similar Community or national operations

There are no similar Community or national operations to be referred to in thiscontext.

* spin-off and multiplier effects expected

The spin-off and multiplier effects expected are that the Communityframework could be recognised world-wide and serve as a trigger for action atinternational level to phase out single hull oil tankers more expeditiously thanprovided now under MARPOL 73/78.

– Main factors of uncertainty which could affect the specific results of theoperation

The main factor of uncertainty is the rate at which single hull oil tankers willbe replaced by double hull oil tankers over the phasing-in period. The proposaltherefore foresees the possibility to adapt, through Comitology procedure, thepercentages of reductions and surcharges to be applied in the differentialcharging system for port and pilotage dues, in order to ensure that revenues forproviders of port and pilotage services can be kept in equilibrium, and to avoidthat compensation for loss in revenues is made by reducing the quality of theseservices or by raising port and pilotage dues for ships unconnected with thetransport of oil or oil products.

9.3 Monitoring and evaluation of the operation

– Performance indicators selected

* output indicators (measurement of resources employed)

The output indicators will be provided by Member States when reporting onthe implementation of the Regulation's provisions at national level, and more inparticular on the application of the differential charging systems for port andpilotage dues.

* impact indicators (measurement of performance against objectives)

As impact indicators the above reporting by Member States should beconsidered, together with port State control data, in particular concerningdeficiencies and detentions reported on oil tankers. Also the number and extentof accidental oil pollution due to structural damage or failure of oil tankers,will be an indicator for the impact of the proposed measure. Further, article 7of the draft proposal requires reporting by the Member States on theapplication of the differential charging system.

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– Details and frequency of planned evaluations

The frequency at which evaluations are planned is annual. These evaluationswill be done by Member States and will consist of reporting on theimplementation of the differential charging system for port and pilotage dues inthe navigable waters and ports in their territory.

– Assessment of the results obtained (where the operation is to be continued orrenewed)

The information contained in the Member States’ reports will be used for theassessment of the need for adjusting the percentages for reductions andsurcharging in the differential charging system. For that purpose an evaluationstudy in the 3rd year, i.e. after each 2nd reporting year, is budgeted (see table7.3).

10. ADMINISTRATIVE EXPENDITURE (SECTION III, P ART A OF THE BUDGET )

10.1 Effect on the number of posts

Type of post Staff to be assigned to managingthe operation

Source Duration

Permanentposts

Temporaryposts

Existingresources inthe DG ordepartmentconcerned

Additionalresources

Officials ortemporary staff

ABC

0,5--

---

0,5--

---

Indefinite--

Other resources - - - - -

Total 0,5 - 0,5 - indefinite

10.3 Increase in other administrative expenditure as a result of the operation

EUR

Budget heading Amounts Method of calculation

A 7031 (obligatorycommittees)

9.750€ The regulatory Committee established for the purpose of thisRegulation is expected to meet on average once in a year for 1 day todiscuss particular issues related to the implementation of itsprovisions. Reimbursement of travel expenses for governmentalexperts to attend this meeting is estimated at an average of650€/expert x 15.

Total 9.750€

The above expenditure set out under heading A 7 will be covered by credits within DG TRENglobal envelope.

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IMPACT ASSESSMENT FORMTHE IMPACT OF THE PROPOSAL ON BUSINESS WITH SPECIAL REFERENCE

TO SMALL AND MEDIUM-SIZED ENTERPRISES (SMEs)

TITLE OF PROPOSAL

Proposal for a Regulation of the European Parliament and of the Council on the acceleratedphasing-in of double hull or equivalent design standards for single hull oil tankers

DOCUMENT REFERENCE NUMBER

COM(….)……final of

THE PROPOSAL

1. Taking account of the principle of subsidiarity, why is Community legislationnecessary in this area and what are its main aims?

The Treaty provides for the establishment of a common transport policy and themeasures envisaged to implement such a policy include measures to improve safetyin maritime transport as foreseen in Article 80 (2) read in conjunction with Article 71(1) (c).

To this end, the main objective of the envisaged action is to apply in the Community,in a harmonised way, an accelerated phasing-in scheme for single hull oil tankers tocomply with the double hull or equivalent design standards of the InternationalConvention on the Prevention of Pollution from Ships (MARPOL 73/78). Aharmonised and accelerated implementation at Community level of theseinternational standards is necessary to reduce considerably the risks andconsequences of accidental oil pollution in case of collision or grounding of thesetypes of ships. It is also necessary to avoid that distortion of competition betweenports is created due to the application of divergent charging systems for port andpilotage dues for single hull and double hull or equivalent design oil tankers.

The Community has a major interest in ensuring that the transport of oil and oilproducts by sea is carried in safe and acceptable conditions, with a minimum risk ofoil pollution in case of accidents. A harmonised action is necessary to avoid re-occurrence of important oil pollution of European coasts, fauna and flora and harm tothe marine environment, as in the case of the sinking of the oil tanker ERIKA off theFrench coast in December 1999.

In view of the internal market dimension of maritime transport, an action atCommunity level is the only possible way to ensure that the same level of protectionagainst oil pollution due to collision or grounding accidents is guaranteed for all oiltankers trading to and from and between European ports, while reducing the risks ofdistortion of competition between ports due to the application of divergent principlesgoverning the charging of port and pilotage dues for environmentally friendly oiltankers.

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THE IMPACT ON BUSINESS

2. Who will be affected by the proposal?– which sectors of business– which sizes of business (what is the concentration of small and medium-sized

firms)– are there particular geographical areas of the Community where these businesses

are found

The business sectors affected by this proposal are shipping companies operating oiltankers trading to and from and between the ports of the European Community forthe import and export and distribution of oil and oil products within the Community.

The Regulation addresses all oil tankers above 600 tons deadweight, regardless oftheir flag, when operating to and from and between ports of the Member States.There is no differentiation between the size of shipping companies operating such oiltankers and the ports receiving them for loading or unloading their cargo, as all sea-borne trade of oil and oil products transported by oil tankers to and from and betweenCommunity ports is affected by the Regulation. The total number of oil tankersoperating world-wide is estimated to be above 7000. In view of the important shareof the EU seaborne imports and exports of oil and oil products, which on average canbe estimated to be around one third of the world seaborne trade67, a considerable partof this oil tanker fleet is calling at Community ports for the loading or unloading ofoil and oil products. As to the ports concerned most of them are large ports as are thecompanies operating the terminals. Indeed many of the oil terminals are the propertyor are managed by the major oil companies. As regards the operators of the tankerfleet involved, they may be or belong to large companies, but also a large number ofmostly smaller sized tankers are operated by small and medium sized enterprises.

There is no special geographical area within the Community where these businessesare found: all except the two land-locked Member States have seaports catering forcommercial ships. Austria and Luxembourg are thus excluded from applying theprovisions of the Regulation related to ports. However, as both these countries aremaritime flag States, their ships are affected by it.

The expected reduction in oil pollution accidents with single hull oil tankers willhave a beneficial effect for the marine environment and considerably reduce the riskand consequences of European coastlines being heavily polluted due to suchaccidents and the associated financial, social and industrial costs. It will also avoiddisturbance of maritime traffic that may be caused by such accidents and theassociated cost and time for salvage of the ships and their cargoes, or in the worstcase, for wreck removal and recovery of the polluting cargoes, and the need forcarrying accident investigations to establish the causes of the loss.

67 See figures on the importance of oil trade for the Community in the Communication to which thisproposal is attached.

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3. What will business have to do to comply with the proposal?

Oil tanker operating companies and oil loading and unloading ports will have toensure that single hull oil tankers are gradually replaced by more environmentallyfriendly double hull or equivalent design tankers, in accordance with the acceleratedcalendar specified in the proposal, which is based upon a combination of ship's agelimits and end-date limits. In addition port and pilotage authorities rendering servicesto oil tankers will have to apply a differential charging system for port and pilotagedues between single hull and double hull or equivalent design oil tankers.

4. What economic effects is the proposal likely to have?– on employment– on investment and the creation of new businesses– on the competitiveness of businesses

The proposal is expected to have a beneficial effect on employment, since theaccelerated replacement of old single hull oil tankers by new double hull tonnagewill increase the demand for newbuildings. This is expected to have a positive effectfor the shipbuilding industry and the associated marine equipment manufacturing andsupply industry. However, it should be noted that due to the large shipbuildingcapacity available in the Far East and the fierce and aggressive pricing policy of thatindustry, the major part of new shipbuilding orders arising from the acceleratedphasing-in scheme would not be secured by European shipyards. The positive impacton employment for the European shipbuilding industry may be therefore ratherlimited. On the other hand, the European marine equipment manufacturers maybenefit from this increased demand for newbuildings, as they will receive moreorders, also for ships to be built outside the Community. Finally the measure mayhave a beneficial impact on the employment opportunities for European seafarers. Itcan be expected that the demand for highly qualified crewmembers may increase dueto the replacement of old single hull oil tanker tonnage by new double hull tonnage.As these new ships will be equipped with state of the art equipment, better-qualifiedcrew will be necessary to safely operate them. It can also be expected that owners ofnew tonnage, as opposed to them operating old and low value tonnage, will prefer torely upon qualified crew for the operation of their investments.

The accelerated phasing-in of the double hull or equivalent design standards forsingle hull oil tankers is expected to have a beneficial effect on the competitivenessof quality operators trading with modern and environmentally friendly oil tankers.Today they are suffering from unfair competition by sub-standard operatorsexploiting sub-standard and over-aged tonnage, which are cutting corners on safetyand marine pollution prevention to offer bottom price for the transport of oil and oilproducts. These low market prices do not allow quality operators to obtain a returnon their investments.

5. Does the proposal contain measures to take account of the specific situation of smalland medium-sized firms (reduced or different requirements etc)?

For the reasons explained above and for the sake of safety and oil pollutionprevention, no distinction is made in the scope of application of this Regulation asregards the size of ships or ports, or companies operating them. Considering that thereplacement of single hull oil tonnage by new double hull tonnage is agreed atinternational level as a measure necessary to reduce the risks of accidental oilpollution, such a distinction is considered not to be necessary nor desirable. On the

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contrary, making such distinctions would create a two-tier safety regime and wouldentail risks for distortion of competition.

However, the proposal aims at balancing the revenues of port and pilotage authoritieswhich are rendering services to oil tankers trading to and from and betweenEuropean ports. This balance will be achieved by compensating the reduction in portand pilotage dues granted to double hull oil tankers with surcharges on port andpilotage dues for single hull oil tankers.

CONSULTATION

6. List the organisations which have been consulted about the proposal and outline theirmain views.

– European Shippers' Council (ESC)

– Federation of European Private Port Operators (FEPORT)

– European Sea Ports Organisation (ESPO)

– European Community Shipowners’ Association (ECSA)

– European Transport Workers’ Federation (ETF)

– Committee of EU shipbuilders' associations (CESA)

– Comité européen des Assurances (CEA)

– International Association of Classification Societies (IACS)

– International Group of Protection & Indemnity Clubs

– International Association of Independent Tanker Owners(Intertanko)

– Oil Companies International Marine Forum (OCIMF)

– International Chamber of Shipping (ICS)

– InternationalUnderwriters Association (UIA)

Industry and professional organisations have been consulted on the main objectivesand principles of the proposal. In general the industry and professional organisationsconsider the proposed phasing-in scheme as very stringent, whilst appreciating theneed for taking measures to enhance considerably the prevention of accidental oilpollution. Some of these organisations have not awaited this proposal to announcethat they will take voluntary measures to contribute to this enhancement. All theseideas for voluntary actions by some parts of the maritime industry emerged after thesinking of the ERIKA and aim at providing a reasoned reply to the justified publicand political concern about the safety of oil transport by sea. This proposal isconsidered by the industry as a stringent but unavoidable measure to ensure that alevel playing field is created for all players involved, in particular for those which forthe time being are not (yet) prepared to commit themselves to similar voluntaryactions.